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# UNITED STATES OF AMERICA. 



NOTES 

ON 

THE SECOND 



PLENARY COUNCIL 

OF BALTIMORE. 

V BY 

r 

REV. S. SMITH, D. D., 

FORMERLY PROFESSOR OF SACRED SCRIPTURE, CANON LAW, AND 
ECCLESIASTICAL HISTORY, AT SETON HALL SEMINARY. 




NEW YORK : 
P. O'SHEA, PUBLISHER, 

37 BARCLAY STREET. AND 42 PARK PLACE. 

1S74. 



Entered according to Act of Congress, in the year 1874, by 
P. O'SHEA, 

in the Office of the Librarian of Congress at Washington. 



Newburgh Stereotype Co. 



PREFACE. 



HE desire of gradually introducing 



ble, the ecclesiastical discipline prevalent 
throughout almost the entire Church, was 
strongly and repeatedly expressed by the 
Fathers of the late National Council of 
Baltimore. Its Decrees tend both avow- 
edly and implicitly to promote the accom- 
plishment of this object. 

In our seminaries, Canon Law is re- 
ceiving closer attention than was formerly 
accorded to it. 

When professor at the seminary of 
this Diocese, I was requested by its worthy 
rector to explain to the students of theol- 
ogy the " Acts and Decrees of the Second 
Plenary Council of Baltimore," as also the 
Statutes of the Diocese. 

I cheerfully complied with this request : 




country, as far as practica- 



iv 



PREFACE. 



the more so, as it chimed in with a natural 
inclination I felt for this study. 

To make the instructions profitable, I 
found it necessary to elucidate the general 
principles upon which ecclesiastical law is 
based; the sources whence it originates 
— the constitution and hierarchy of the 
Church. 

Having premised these, I entered upon 
my real task, that of setting forth the De- 
crees of Baltimore. 

But to render this class still more in- 
teresting for my students, I conceived the 
idea of succinctly illustrating the princi- 
pal points of ecclesiastical jurisprudence, 
taking the Second Plenary Council of 
Baltimore as the text and groundwork of 
my lectures. When feasible, I referred 
to and commented on the Diocesan Stat- 
utes. 

This order has not been changed in 
the present volume. 

While, on the whole, this method differs 
but immaterially from that of other Canon 
ical text-books, it seemed to possess the 
advantage of allowing the author systemati- 
cally to propound the Decrees of Baltimore, 



PREFACE. 



and thus to adapt the principles of eccle- 
siastical jurisprudence to our American in- 
stitutions. These pages have been written 
in none other than the most friendly spirit 
toward our venerable Episcopate. 

No pretensions to exhaustive erudition, 
laborious research, or deep learning are 
made. This little work only aspires to the 
honor of contributing but an insignificant 
mite to a branch of ecclesiastical lore, the 
cultivation of which must materially con- 
duce to the welfare of the Church in 
America. 

To induct into this country Canon Law 
in its old form, may not be altogether 
practicable. 

Ours is a land in which the Church is 
placed in peculiar circumstances. Reli- 
gion is only building up as yet. There 
are no long-established usages to go by, 
and no well - defined precedents to fol- 
low ; while in most parts of Europe, 
Catholic faith has ruled supreme for gen- 
erations. 

While therefore striving to adhere as 
closely as possible to the spirit of the 
Common Law of the Church, we may be 



vi 



PREFACE. 



obliged at times to deviate from it as to 
the letter. 

This adaptation of Canon Law to our 
country, it seems to us, has been admirably 
brought about by the late Plenary Council 
of Baltimore. 

We propose in these notes, to call 
attention to the chief features of interest; 
of this Council either entirely passing over 
other matters of less note, or touching but 
slightly on them. 

The principles underlying ecclesiastical 
jurisprudence, are, like those of moral the- 
ology, unchangeable, and the same in every 
country : their application, however, is dif- 
ferent, accidentally at least, in the various 
parts of the Christian world. 

The principles themselves of Canon 
Law flow from the essential constitution 
of the Church ; hence they are as fixed 
as is the essence of the Church. I am 
not one of those who think that the 
combined wisdom of nineteen centuries, 
as concentrated in ecclesiastical jurispru- 
dence, is wholly inapplicable to this coun- 
try, or altogether out of date — that we 
need a system of ecclesiastical legislation 



PREFACE. 



Vii 



entirely distinct from that which was laid 
down by the fathers of the Church, and the 
immortal pontiffs of old. 

While it may be said that Canon Law 
is, to a certain limited extent, the outgrowth 
of circumstances of time and place, yet it 
must not be forgotten, that everywhere 
exists the same Church, the same hierar- 
chy, and, in consequence, substantially the 
same relation between bishops, priests, and 
laity. 

It has been our endeavor, in these pages, 
to dwell more at length upon questions 
of practical moment, than amuse our read- 
ers with speculative disquisitions — to be 
clear and succinct of speech, rather than 
eloquent and flowery. 

While the subject in hand may be of 
more specific interest for our esteemed 
readers of the clergy, we think that it will 
not be altogether void of attraction to the 
intelligent perusers of the laity. 

It seems to us a mistaken notion to 
confine theological studies to ecclesiastics. 
Secular persons will never lose in faith by 
a thorough acquaintance with every branch 
of clerical erudition. Clear knowledge of 



viii 



PREFACE, 



Christianity is the basis of firm belief: ac- 
curate cognition of ecclesiastical jurispru- 
dence is conducive to prompt submission 
to its injunctions. 



Patronage of St. Joseph, 
April 26, 1874. 



CONTENTS. 



CHAPTER I. 

Nature of Canon Law. 

PAGB 

§ i. Nature and Scope of Ecclesiastical Jurisprudence, . I 

§ 2. Difference between Canon Law and Theology, . 5 

§ 3. Division of Canon Law, 9 

CHAPTER II. 

Of the Sources of Canon Law. 

§ 4. Of Custom, 14 

§ 5. Of Pontifical Constitutions, 17 

§ 6. Of Promulgation, 20 

§ 7. Of Councils, 27 

§ 8. Of Collections of Sacred Canons, 31 

CHAPTER III. 

Of the Roman Pontiff. 

§ 9. Primacy of Jurisdiction, 39 

§ 10. Infallibility and Gallicanism, 44 

§ II. Hierarchy of the Church, 51 

§12. Theological Conferences, 53 



X 



CONTENTS, 



CHAPTER IV. 

Of Councillors of the Bishop, 

PAGE 

§ 13. Origin of Canons. — Rights of Chapters, .... 56 
§ 14. Administration of a Diocese, sede vacante, in the 

United States, 61 

§ 15. Bishop's Council in America, 65 

§ 16. Vicar General and other Officials, 67 

CHAPTER V. 

Of Ecclesiastical Persons, 
§ 17. Jurisdiction of Metropolitans, 72 

CHAPTER VI. 

Of Bishops : their Duties and Privileges. 

§ 18. Jurisdiction of Bishops, 75 

g 19. Origin of Episcopal Jurisdiction, 77 

§ 20. Titulus Missionis. — Priests cannot enter a Religious 

Order without the permission of the Ordinaiy, . 80 

§ 21. Salary and Perquisites of Pastors and Assistants, . 83 

§ 22. Cathedraticum, 86 

§ 23. Election of Bishops, 88 

CHAPTER VII. 

Of Priests having the Care of Souls, 

§ 24. History of -Parochial Rights, 105 

§ 25. Immovability of Parish Priests, 107 

§ 26. Manner of appointing Parish Priests. — Examina- 
tions, in 

§ 27. Of Ecclesiastical Benefices, 117 

§ 28. Patronage (Jus Patronatus), 120 



CONTENTS. 



xi 



CHAPTER VIII. 

Life and Propriety of Conduct of Clerics. 

PAGE 

§ 29. Ecclesiastical Dress. — Obligation of wearing Cas- 
sock in this Country, . 123 

§ 30. Ecclesiastical Immunities 126 



CHAPTER IX. 

On Ecclesiastical Seminaries. 

§ 31. History of Ecclesiastical Seminaries, .... 130 
§ 32. Internal Administration of Seminaries. — Public 
Examinations. — Provincial Seminaries prefer- 
able to Diocesan Seminaries in the United 
States, . 134 

CHAPTER X. 

On Holding Ecclesiastical Property. 

§ 33. Trusteeism. — Right of Church Property as Recog- 
nized by Civil Law in America, 142 

§ 34. History of Ecclesiastical Property, ...... 145 

§ 35. Administrators must annually render an account to 

the Ordinary, . . 15 1 

§ 36. Mode of securing Ecclesiastical Property in the 

Diocese of Newark, 153 

CHAPTER XL 

Private Property of Ecclesiastics. 

§ 37- Various Kinds of Property which Clergymen may 

hold in their own Name, 157 



xii 



CONTENTS. 



CHAPTER XII. 

Right of Property of Regulars and Nuns. 

PAGE 

§ 38. Regulars of both Sexes, bound by solemn vows, 
may hold Property as a Community : as Indi- 
viduals they cannot. — Those that have but sim- 
ple vows may have Property, but cannot licitly 
dispose of it without the Superior's permission, 161 

CHAPTER XIII. 

On Sacraments in General. 



§ 39. Divine Institution of Sacraments, 165 

§ 40. Language. — Interrogations of Baptism made in the 

Vernacular. — Various Opinions, 166 

§ 41. Ritual. — Is the Form of Matrimony prescribed in 
the Archdiocese of Baltimore binding through- 
out the United States ? 171 

CHAPTER XIV. 

On Sacraments in Particular. — On Baptism. 

§ 42. Pastors are forbidden to Baptize Children not 

belonging to their Parish, 175 

§ 43. Baptism of Children of Non-Catholic Parents, . . 177 

§ 44. Sponsors, 179 

§ 45. Ceremonies of Adult Baptism, 182 

§ 46. Reception of Converts into the Church, . . . .185 

§ 47. Baptism of Heretics, . ...... 186 

CHAPTER XV. 

Confirmation. 

§ 48. Sponsors in Confirmation, 195 



CONTENTS. 



xiii 



CHAPTER XVI. 

Holy Eucharist. 

PAGE 

§ 49. Time of fulfilling Paschal Precept : its Violation, . 198 
§ 50. Age at which Children are bound by this Precept, . 201 
§ 51. Administering Holy Communion with Stole only, . 204 

CHAPTER XVII. 

On Penance, 

§ 52. Public Confession. — Nature of Reservations, . . 207 

§ 53. Confessionals, 212 

§ 54. Jurisdiction, Ordinary and Delegate, . . . .215 

CHAPTER XVIII. 

Indulgences. 

§ 55. Can Bishops grant Indulgences? 220 

§ 56. Indulgence of Forty Hours' Devotion, .... 221 

CHAPTER XIX. 

Extreme Unction, 

§57. Subject of this Sacrament : when it may be Re- 
peated, 227 

CHAPTER XX. 

Holy Orders, 

§ 58. Hierarchy : Examinations for Orders, • • 
§ 59. Title of Ordination, 



xiv 



CONTENTS. 



CHAPTER XXL 

On Matrimony. 

PAGE 

§ 60. Indissolubility of Marriage, 240 

§ 61. History of Ecclesiastical Legislation on Marriage, . 242 
§ 62. Divorce in General. — Civil Divorce, .... 246 
§ 63. May Catholics in America apply to the Civil Author- 
ity for Divorce ? 250 

§ 64. Is a Second Marriage allowable when there is 

doubt of the Death of the First Party? . . .254 
§ 65. Civil Legislation in the United States on Marriage, 260 

§ 66. Publication of Banns. — Cases, 563 

§ 67. Clandestine Marriages. — Decree of Council of 
Trent. — Teaching of the Second Plenary Coun- 
cil of Baltimore. — Decision of the Propaganda 

with regard to China, 269 

§ 68. Decision in the Case of China applicable to 

America, 277 

§ 69. Betrothals, 284 

CHAPTER XXII. 

On the Sacrifice of the Mass. 

§ 70. Obligation of Offering up Mass on Sundays and 

Festivals for the People, 291 

§ 71. Stipend of Mass, . . . 295 

§ 72. Foundations for Perpetual Masses, 299 

CHAPTER XXIII. 

On Benediction of the Blessed Sacrament and Forty Hours' 1 
Devotion. 

§ 73. Conditions of gaining the Indulgence. — Holy 

Communion : Time of receiving it, . . . . 302 



CONTENTS. 



XV 



CHAPTER XXIV. 

On Uniformity of Discipline. 

PAGE 

§ 74. Observance of Lent in the United States, . . . 308 
§ 75. Obligation of Resting from Servile Labor and of 

Hearing Mass on Holidays, 310 

CHAPTER XXV. 

On Dispensations and Ecclesiastical Burials. 

§ 76. Levy or Tax on Dispensations, 315 

§ 77. Ecclesiastical Interment. — Sectarian and Profane 

Cemeteries, 318 

§ 78. Days of Prayer and Thanksgiving set apart by Civil 

Authority, 322 

CHAPTER XXVI. 

Monks and Nuns. 

§ 79. Regulars as Pastors of Souls, 326 

§ 80. Nuns. — Nature of their Vows in the United States, 329 
§ 81. Law of Enclosure not binding on Nuns having but 

Simple Vows, 331 

§ 82. Confessors of Nuns and Sisters, 338 

§ 83. Extraordinary Confessors of Nuns, 343 

CHAPTER XXVII. 

On Books and Newspapers, 

§ 84. Permission of Printing Books. — Law of the Index, 354 
§ 85. Is the Law of the Sacred Index binding in this 

Country ? 362 



xvi 



CONTENTS. 



CHAPTER XXVIII. 

Censures. 

PAGE 

§ 86. Ecclesiastical Judicature in general, 367 

§ 87. Causes subject to Ecclesiastical Tribunals. — Mode 

of Judicial Proceedings, 374 

§ 88. Normal Condition of Ecclesiastical Judicature, . 378 

§ 89. Clerics Impleading one another in Civil Courts, . 385 

§ 90. Censures. — Various Kinds of Censures, .... 391 

§ 91. Reservation of Censures, 393 

§ 92. Suspension in general. — Suspension ex Informata 

Conscientia, 398 

Appendix, 409 

Contents of Appendix, 411 



NOTES ON THE SECOND 

PLENARY COUNCIL 

OF BALTIMORE. 



CHAPTER I. 

Of the Nature of Canon Law. 

See Soglia, Jus Eccl. lib. i. torn. i. c. i. § 2 seq. : Walter, 
Kirchenrecht, Introd. § I seq. : Reiffenstuel, Jus Eccl. 
torn. i. Procem. § 1-3, p. 1-5 seq. ; § 9, p. 156 ; § 10, p. 181 
seq. : Blackstone's Comment. Introd. sec. i. ii. iii. p. 1-20. 

§ I. NATURE AND SCOPE OF ECCLESIASTICAL 
JURISPRUDENCE. 

i. What is Canon Law? The term 
" canon " means a rule or guide. In the 
present case, it signifies the rule or guide 
to eternal life. It may therefore be de- 
fined : 

" A collection or body of the canons or laws of 



2 



SECOND PLENARY COUNCIL 



faith, morals, and discipline, prescribed to Chris- 
tians by a competent authority, that is, the Church." 
(Soglia, L c. cap. i. lib. i.) 

Again : 

"Jurisprudence in general, as a science, means 
a system of laws, by which a society is enabled 
both to preserve its existence and attain its end. 
By ecclesiastical jurisprudence, therefore, we under- 
stand the system of laws, by which the Church of 
Christ is regulated, so as to furnish her with means 
to conserve her being in a fitting manner and reach 
her end." (Tarquini, Jus Eccl. Publ. p. i, Romas, 
1868.) 

" The term ' law ' is used in different meanings. 
First, it is taken for the laws themselves or enact- 
ments : again, it is applied to the science or also 
knowledge of laws and constitutions ; and in this 
sense, it appropriately signifies jurisprudence." 

" As far as we are concerned, the term ' law ' 
(jus) chiefly denotes the laws themselves, no less 
than the science of laws, although, strictly speaking, 
there is some difference even between these two." 
(Reiff. Jus Can. Univers. torn. i. Procem. § 1. p. 
i-3.) 

Law is properly defined : 

" A reasonable rule of action for the attaining of 
the end of a society, and imposed in an obligatory 
manner, upon its members, by the one, in whom its 
power resides/' (Tarq. 1. c, p. 11-12.) 



OF BALTIMORE. 



3 



Canonists generally divide law into : 

1. Divine or revealed law, 

2. Law of nature. 

3. Law of nations. 

4. Civil law. 

5. Ecclesiastical law. 

Blackstone says : 

" Of laws so understood, there are four kinds : 
" 1. The revealed law. 
" 2. The law of nature. 
" 3. The law of nations. 

"4. Municipal or civil law." (Blackst. Introd. 
sec. ii.) 

Blackstone, as appears from the above, 
does not distinguish between revealed 
law and ecclesiastical law, whilst canonists 
carefully do so. For, ecclesiastical is not 
always revealed. 

"From the eternal law, as from their primary 
source, all other laws are derived." 

" The eternal law, inasmuch as it is the origin of 
all other laws, is the act of the Divine intelligence, 
by which God conceives and establishes with the in- 
tent of binding, some practical, necessary, and im- 
mutable rules to be observed by creatures." (Rieff. 
Jus Can. vol. i. p. 2. n. 12.) 



4 



SECOND PLENARY COUNCIL 



In like manner, Blackstone maintains : 

" All laws ultimately rely on the same authority, 
the will of God." (Comm. Introd. sec. ii.) 

2. We may further inquire what law it- 
self signifies. 

" Every rule," says Blackstone, "whereby any sort 
of action, whether necessary or voluntary, proceeds, is 
termed a Maw ' of that action. But the term Maws,' 
in the proper sense of it, is confined to the rules of 
voluntary action ; or in other words, to the precepts 
dictated by competent authority, for the governance 
of man, a being endowed with both reason and free- 
will." (Blackstone, 1. c. p. 6.) 

" Necessary action is that of natural agents ; vol- 
untary, that of intellectual ones ; yet the rules which 
each do or ought to subserve, are termed indifferently, 
laws. Gravitation, magnetism, and electricity, for in- 
stance, vegetable or animal economy, are systems of 
necessary action, the rules of which are called the laws 
of gravitation, magnetism, and electricity, the laws of 
vegetable or animal economy, respectively : religion 
and civil government are systems of voluntary action, 
the rules of which are respectively denominated the 
laws of religion, and the laws of civil government. 

" But natural agents can do no other than conform ; 
and their subservience is not virtue, but regularity : 
rational agents possess power (to be exercised at their 
own peril) of non-conformity ; and their obedience is 
not order, but merit. Thus the term 1 law ' applies 
to the two classes of action in different senses ; it is 



OF BAL TIMORE. 



5 



strictly appropriate only to the rules of voluntary con- 
duct ; when it is employed to express those of neces- 
sary action, it either advances natural into moral 
agents, or loses its own essentially inherent ideas 
of free agency and accountableness." (Blackstone, 
Introd. sec. ii. note, p. 5-6.) 

The term law, as is evident, is taken 
here in a restricted meaning. Canon law con- 
sists of the laws of the Church as explained, 
systematically arranged, and applied. 




§ 2. DIFFERENCE BETWEEN CANON LAW AND 
THEOLOGY. 

3. The difference between theology 
and canon law is that the former treats of 
principles in general ; the latter regards 
their practical bearing on Christian socie- 
ty. Both, in fact, discourse on faith and 
morals. But the one does so in general, 
and in order to establish the rule of believ- 
ing. Hence its chief effort is to demon- 
strate what is true faith and what is repug- 
nant to it. The other treats of faith and 
morals as constituting the rule of our 
actions. 

Again, moral theology considers virtue 
and vice from the stand-point of their gen- 



6 



SECOND PLENARY COUNCIL 



eral goodness or malice, having relation 
chiefly to the tribunal of penance ; while 
canon law has reference rather to the 
external ecclesiastical polity, viewing the 
faithful as forming an external community. 
It consequently also discourses on the 
office and dignities in the Church, and on 
the ecclesiastical hierarchy. 

4. The ecclesiastical law differs from 
the civil with regard to its origin, end, and 
subject-matter. Civil law proceeds from 
God as the author of nature ; ecclesiastical 
law, from God as the author of grace. 
The end of the former is temporal hap- 
piness ; that of the latter, eternal bliss. 
The subject-matter of the one is earthly 
transactions ; that of the other spiritual 
concerns. (Soglia, L c.) 

5. Canon law has reference to the 
Church, as a society instituted by Christ. 
It regards chiefly, therefore, its external 
element. Now, 

" A society is a multitude of men combining to- 
gether for the purpose of securing means to attain a 
common end. It is called perfect when it is complete 
in itself, containing within its own bosom adequate 
means to accomplish its object." (Tarquini, 1. c. p. 4.) 



OF BALTIMORE. 



7 



Four things must be considered in 
every society: ist, the number of men 
composing it ; 2d, their moral union ; 3d, 
the end to which they aspire ; 4th, the 
means of arriving at the end. Of all 
these, the end principally determines the 
character of the society itself. 

Ti:e Church therefore is a supreme 
society, her end being supreme, that is, 
eternal happiness. And as this end can be 
subordinate to no other, so neither can the 
Church itself. The Church, moreover, is 
a perfect society ; otherwise she would not 
possess those means that would enable her 
to save souls, which would be a defect in 
the will of her Founder. (Tarquini, 1. c. 

P. 350 

Now a perfect society must be pos- 
sessed of a threefold power : legislative, 
judicial, and coercive or executive. 

" And again, every law, in order to attain its end 
of serving as a rule of conduct effectually, consists 
virtually of several parts : one declaratory, defining 
the rule ; another directory, enjoining its observance ; 
a third remedial, pointing out to persons injured 
thereby, modes of reparation ; analogous to which 
remedial part is the vindicatory branch of the law, 



8 



SECOND PLENARY COUNCIL 



annexing to the offence an adequate penalty." (Black- 
stone, 1. c. p. 10.) 

6. Relation of Church and State. 

The end of man is temporal welfare 
here, and eternal happiness hereafter. 
Hence there are but two perfect societies, 
the ecclesiastical and the civil. The one 
is perfect, and absolutely supreme. The 
other is perfect, and but relatively supreme. 

Temporal felicity and pleasure cannot 
be absolutely supreme. They must be made 
subservient and conducive to eternal hap- 
piness. Hence neither is civil society ab- 
solutely supreme and independent of the 
Church. Its object is to promote directly 
the temporal welfare of man, and indirect- 
ly aid him in attaining his ultimate end. 
Hence, both civil society and the Church 
are compared with the soul and body of 
man. There exists between them a close 
union, and a constant harmony, and they 
continually assist each other. So should 
the Church and State stand in relation one 
to the other. Unhappily, modern govern- 
ments have almost everywhere rendered 
this union impossible. They acknowledge 



OF BALTIMORE. 



9 



no superior law. The State is proclaimed 
omnipotent ; law itself, atheistic. Thus 
has society emancipated itself from the 
Church, and thus it stands in open revolt 
against God himself. Whatever may have 
been the defects of former governments, 
however greatly they may have interfered 
with and hampered the free action of the 
Church, they, at least, never proclaimed 
the principle that the State was God. 
This was a pagan axiom. The Liberals of 
the nineteenth century have unearthed it 
once more, and clothed it with imperial 
majesty. 

§ 3. DIVISION. 

7. Canon law is divided into three parts : 
the first treats of persons ; the second, of 
things ; the third, of ecclesiastical judica- 
ture. 

The first part comprises the entire 
hierarchy of the Church in all its forms; 
its various functions ; the rights and pre- 
rogatives of the clergy. 

The second treats of the sacraments, 
sacred vestments and vases, rites and cere- 
monies, temples, chapels, monasteries and 



10 



SECOND PLENARY COUNCIL 



religious houses, cemeteries, and church 
property in general. 

The third discourses on the judiciary of 
the Church : explains its legislative, judic- 
ative and coercive power; the manner of 
conducting ecclesiastical cases and trials ; 
also the persons and causes that fall under 
its jurisdiction. 

8. Another distinction is that of public 
and private ecclesiastical law. The former 
treats of the officers and rectors of the 
Church, in their official capacity, and in 
general of whatever pertains to the entire 
body of the Church. As their functions 
and prerogatives must be determined by the 
nature of the ecclesiastical polity, it follows 
that public law or jurisprudence has for its 
object (a) the nature and inherent powers 
of the Church as a supreme and perfect 
society instituted by Christ ; (d) the duties 
and rights of its various rulers. Hence it 
is defined : 

" That part of ecclesiastical jurisprudence which 
has reference to the entire Church, and settles the 
rights and duties of its rectors." (Soglia, 1. c.) 

Private ecclesiastical law regards the 
rights and duties of the laity. (Ib.) 



OF BALTIMORE. 



II 



9. Some canonists differ from this di- 
vision. Still, to us it seems to be. an easy 
and natural one, being based upon the es- 
sential constitution of the Church, all of 
whose members belong either to the clergy 
or to the laity. 

10. Again, canon law, viewed with re- 
gard to those on whom it is binding, is 
termed common and particular. (Tarquini, 
cap. iii. p. 131, L c.) 

The common law is obligatory on all 
the faithful spread throughout the world. 
The particular or special law is that which 
is made for a particular locality, diocese, or 
province only, and binds not outside of 
them. Such are provincial, national, or sy- 
nodal decrees and statutes. (Reiffenstuel, 
1. c. Procem. n. 48, § 3.) 

11. It is again divided into written and 
unwritten law. The former includes all 
positive legal enactments, properly regis- 
tered ; the latter, custom and tradition. 
Canonists fitly designate this distinction 
when they say : " Omne jus legibus et mori- 
bus constat." (Reiff. torn. i. p. 6.) 

The written law is again either common 
or particular, as containing prescriptions 



1 2 SECOND PLENA R Y CO UNCIL 



binding on all the faithful or only on a part 
them. 

The common written law comprises : 
(a) The constitutions and decretal epis- 
tles of the Sovereign Pontiffs. 

(6) Decrees of Ecumenical Councils. 
The particular written law contains : 
(a) Decrees of National Provincial 
Councils. 

(6) Decrees and statutes of Bishops. 

(c) Statutes and rules of Regulars. 

(d) Decrees of Roman Pontiffs, made 
for particular localities only. (TARQ.p. 131.) 

The unwritten law consists of traditions 
and custom. (Tarq. L c. p. 132.) 

12. A similar distinction obtains in 
civil law. 

"The municipal (or civil) law," Blackstone says, 
" may be divided into two kinds, lex non scripta, the 
unwritten or common law; lex scripta, the written or 
statute law. The lex non scripta includes general 
customs, or common law proper; particular custcms 
of particular places ; particular laws, by custom 
observed. 

"By leges non scriptae are not to be understood 
laws, at present mostly oral, but only those the orig- 
inal constitution and authority of which are not set 
down in writing, as acts of Parliament are, and which 



OF BALTIMORE. 



13 



are valid by immemorial usage and universal recep- 
tion." (Blackst. 1. c. p. 12.) 

13. As will be observed in the above 
passage, a distinction is made in the civil 
law, which does not exist in, nay, is contrary 
to that of canon law. 

Blackstone terms the lex non scripta, 
the common law. Ecclesiastical jurispru- 
dence, however, makes law common or par- 
ticular, according to the extent or reach of 
its obligation. 

Again, ecclesiastical jurisprudence does 
not require u time immemorial" to make an 
unwritten law obligatory ; a certain term 
of years only is necessary. 

The laws or canons of the Church are 
threefold : canons of faith ; canons of 
morals ; and canons of discipline. 



14 SECOND PLENAR Y CO UNCIL 



CHAPTER II. 

Fountains of Ecclesiastical Jurisprudence. 

14. The fountain of a thing is that 
from which it is derived. Now the legis- 
lator is the one with whom the law origi- 
nates. There are four different lawgivers 
in the Church : Christ himself, the founder 
and head of the Church ; the apostles ; 
the Roman pontiffs ; the bishops assembled 
in council with the Pope. (Sogl. vol. i. 
chap. ii. De Font. § 14. p. 22.) 

In a broad sense, however, canonists 
designate as sources of ecclesiastical ju- 
risprudence, all such places, books, and 
documents as contain legal prescriptions of 
the Church : such are the Holy Scriptures 
and sacred traditions ; the decrees and 
constitutions of the Roman pontiffs, and of 
ecumenical councils. 

§ 4. CUSTOM. 

15. Omitting the other parts, we shall 



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say but a few words on custom as one of 
the sources of canon law. 

66 Custom is a right induced by the manners and 
long-continued usages of nations with the express or 
tacit consent of the lawgiver." (Sogl. 1. c.) 

It is either in conformity with the law, 
" secundum legem ; " or it is " praeter 
legem," that is, beyond or outside the law ; 
or finally "contra legem," that is, directly 
opposed to the law, so that the latter is 
either directly thwarted or rendered in- 
effectual by long-continued acts of an 
opposite character. 

16. "A custom being proved to exist," Black- 
stone says, " we are next to inquire into its legality. 
To make a particular custom good, the following are 
necessary requisites." (Blackst.) 

(#) It must have been used so long 
that the memory of man runneth not to the 
contrary. 

(6) It must have been continued. 

(c) It must be peaceable and acquiesced 
in by all. 

(d) Customs must be reasonable, or 
rather, not unreasonable ; that is, they must 
not be opposed to any divine law. 



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(e) Customs, though originally estab- 
lished by consent, must be, when estab- 
lished, compulsory, not optional. (Blackst. 
p. 17. 1. c.) 

17. With regard to a legitimate pre- 
scription, Blackstone requires that a custom 
" must have been in use so long that the 
memory of man runneth not to the con- 
trary." This is the author's individual 
opinion. Many, nay, the greater part of 
ecclesiastical as well as secular jurists 
maintain that the space of ten years is 
sufficient to constitute a legitimate pre- 
scription, both in civil and ecclesiastical 
law. This is held by Lessius, lib. ii. De Just, 
et Jur. cap. 6. n. 46; Lugo, disp. 6. De 
Just et Jure, sec. 6. n. 94; Azorius, 
part. i. lib. 5. cap. 18. quaest. 6; Castro- 
Palao, and a number of others. 

The question is accurately ventilated by 
Reiffenstuel, lib. i. Decretal, tit. iv. p. 164. 
torn. i. edit. Venet. 1730. 

18. Here the question may be put, 
whether custom suffices to acquire juris- 
diction ; such, for instance, as that of 
bishops dispensing with the general laws 
of the Church. (Ap. Soglia, vol. i. p. 36.) 



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It is a fixed principle of ecclesiastical 
jurisprudence, that the common or universal 
laws, such as the impediments of marriage, 
being made either by a general council or the 
Pope, can be dispensed with only by the 
Roman pontiff, who is the universal pastor. 

Now, on the other hand, it is no less 
certain that bishops do claim by virtue of 
custom the ordinary privilege of dispens- 
ing with some of the impediments of mar- 
riage. Is their claim a legitimate one ? 

19. There are two opinions: the first 
replies in the negative : 

" Against the Pope," says Suarez, " nobody can pre- 
scribe for things pertaining to his supreme power." 
(Def. Fid. Cath. lib. iv. c. 34. n. 18. See also Bened. 
XIV. De Synod. Dioc. lib. ix. cap. 2 ; Perrone, De 
Matrim. lib. ii. cap. iii. art. ii. p. 92 seq.) 

The second answers affirmatively. See 
Gibertus, consult. 39, De Matrim. torn. 12; 
Van Espen, Jur. Eccl. Univers. part. 2. tit. 
14. cap. i. n. 12. 

§ 5. PONTIFICAL CONSTITUTIONS. 

20. Another source of ecclesiastical law 
is found in the constitutions of the sove- 
reign pontiffs. 



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The term constitution is used gener- 
ally as synonymous with that of law. In 
this broad sense, pontifical constitutions are 
defined : 

" All those decrees, ordinances, and decretal epis- 
tles of the supreme pontiffs, that are issued and pro- 
mulgated by the Pope, as head of the entire Church." 
(Sogl. Jus Priv. praenot. c. ii. § 22. p. 44. vol. i.) 

In a more restricted sense, it means 
the decrees of the pontiffs alone; in the 
wider signification, it comprehends all laws 
made either by the Pope or an ecumenical 
council. 

21. A decretal epistle is thus defined: 

" A decretal epistle is that which the Pope, either 
with or without the advice of the cardinals, dictates 
in reply to questions addressed to the Holy See." 
(Reiff. lib. i. tit. ii. n. 10. p. 63. vol. i.) 

It is also termed a "rescript," being a 
written answer to some inquiry made to 
the Holy See. 

" A simple 6 decree ' differs from a decretal epistle, 
the former being a sanction of the Pope not occasioned 
by, nor made in reply to any question." (Reiff. 1. c.) 

22. Blackstone takes delight in sneering 
at pontifical rescripts, when he tells us : 



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" In the canon law, the decretal epistles of the 
Holy See are ' rescripts ; ' arguing, contrary to all true 
forms of reasoning, from particulars to generals." 
(Blackst. Introd. sec. ii. p. 11.) 

This passage betrays either gross igno- 
rance or profound malice with regard to 
the nature of pontifical " rescripts." No 
ecclesiastical jurist of note holds that they 
obtain the force of universal laws ; and 
that consequently they argue from particu- 
lars to universals. 

23. "Rescripts " have the efficacy of law 
" inter partes " only ; that is, they are bind- 
ing on those only for whom they were 
given. They may be applied to cases of 
a similar kind. But they are not " of 
themselves " universal laws, as they are not 
made for the entire community, nor sol- 
emnly promulgated. 

In two cases only do they acquire the 
force of common laws ; namely, (#) w T hen 
received by the Church into the body of 
the common law ; when they are expla- 
nations of a universal law. (Reiff. 1. c.) 

In both cases, it is not by virtue of being- 
rescripts or of arguing from particulars to 
generals, that they become common law, 



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but by their solemn acceptation and pro- 
mulgation. 

24. But the great English jurist contra- 
dicts himself when he says : 

" For established precedents must be abided by, as 
well to keep the scale of justice steady and even, as 
also because the law in that case being solemnly 
declared and determined, what before was uncertain 
and perhaps indifferent, is now become a permanent 
rule, which it is not in the breast of any subsequent 
judge to alter, whose province it is 4 jus dicere, non 
jus dare.' " (Blackst. Com. Introd. p. 13.) 

Now do not precedents, we might re- 
tort, contrary to all forms of sound reason- 
ing, consist in arguing from particulars to 
generals ? What else are pontifical re- 
scripts but precedents ? Yet such is blind 
bigotry, even in a great EngUsh jurispru- 
dent, that it will not hesitate to gainsay its 
own assertion when applied to an object 
hateful to it. 

§ 6. PROMULGATION. 

25. All agree that no law binds except 
when sufficiently made known to the sub- 
ject. But the mode of promulgation is 
differently stated. Some hold it to be 



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sufficient that the papal constitutions should 
be published at Rome in order to be bind- 
ing on all the faithful spread throughout 
the world ; only, however, after such a lapse 
of time as will be necessary to make them 
sufficiently public in the respective coun- 
tries. 

26. Others require them to be formally 
promulgated in each province, nay, in each 
city. Whatever opinion one should choose 
to embrace, would seem to be but of lit- 
tle practical moment in " foro conscientiae ; " 
as all grant that no law obliges in con- 
science except when made sufficiently man- 
ifest to the subject. 

Moreover, it is the common opinion of 
jurisprudents, that pontifical constitutions 
and decrees pertaining to matters of faith 
and morals, are but explanations of the 
divinely revealed law, and therefore become 
binding as soon as they come to the knowl- 
edge of the subject. (Tournely, Tract, de 
Leg. v. sec. 4.) 

27. Hence the question agitated some 
years ago, immediately after the suspension 
of the late Vatican Council, whether the 
decrees and constitutions declaring the 



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Pope infallible in his magisterial or official 
capacity, were obligatory on the faithful 
immediately after the definition, or only 
after the absolute close of the council, the 
solemn subscription of all the fathers, and 
the formal promulgation, was irrelevant 
and out of place. 

All must admit that the definition was 
a revealed truth, not a mere positive or 
disciplinary law. Therefore it needed no 
particular form of promulgation to make it 
binding in conscience. It is evident that 
as soon as any one is apprised of a divine 
law in a manner that leaves no doubt as to 
its existence, he is bound in conscience 
forthwith to believe it. 

Yet it may be retorted that the only 
sure way of obtaining an incontrovert- 
ible knowledge of laws, even divine, is by 
their solemn promulgation formally made 
through the Church. 

This objection may have had some 
weight several centuries ago. But with 
our modern facilities of communication, 
with our cables extending from east to 
west and from north to south, transmit- 
ting the new r s from Rome all over the 



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world in a few hours, such an argument 
cannot hold for an instant. 

This objection is thus discussed by 
Archbishop Manning : 

" The ninth — I will not say the last (attack on the defini- 
tion of Infallibility), for who can tell what may still come ? — is 
to affirm that the definition, though solemnly made, confirmed, 
and published by the Head of the Church in the Ecumenical 
Council, and promulgated urbi et orbi, according to the tradi- 
tional usage of the Church, does not bind the conscience of the 
faithful till the Council is concluded and subscribed by the 
bishops. 

" This last is the only remnant of the controversy now sur- 
viving. I can hardly believe that any one, after the letter of 
Cardinal Antonelli to the nuncio at Brussels, can persist in this 
error. Nevertheless it may be well to add one or two words, 
which you will anticipate, and well know how to use. 

" 1. A definition of faith declares that a doctrine was revealed 
by God. 

" Are the faithful then dispensed from believing Divine revela- 
tion till the Council is concluded, and the bishops have sub- 
scribed it ? 

" I hope, for the sake of the Catholic religion in the face of 
the English people, that we shall hear no more of an assertion 
so uncatholic and so dangerous. 

" 2. But perhaps it may mean that the Council is not yet con- 
firmed, because not yet concluded. 

" The Council may not yet be confirmed because not yet con- 
cluded ; but the definition is both concluded and confirmed. 

" The Council is as completely confirmed in its acts hitherto 
taken, as it ever will or can be. The future confirmation will 
not add anything to that which is confirmed already. It will 
confirm future acts, not those which are already perfect. 

" 3. But perhaps some may have an idea that the question is 
not yet closed, and that the Council may hereafter undo what it 



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has done. We have been told that ' its decrees may have to be 
corrected,' and that two years elapsed before the ecumenical 
pretensions of the Latrocinium of Ephesus were formally super- 
seded. Some have called it ' Ludibrium Vaticanum.' 

" Let those who so speak or think, for many so speak with- 
out thinking, look to their faith. The past acts of the Council 
are infallible. No future acts will retouch them. This is the 
meaning of ' irreformable.' Infallibility does not return upon 
its own steps, and they who suspend their assent to its acts on 
the plea that the Council is not concluded, are in danger of fall- 
ing from the faith. They who reject the Definitions of the 
Vatican Council are already in heresy." (" The Vatican Council," 
by H. E. Manning, p. 45. 46.) 

28. Of the promulgation of civil laws, 
Blackstone says : 

" A resolution of the legislature is no law till this 
resolution be notified ; but it may be notified in vari- 
ous ways, as by universal tradition and long practice, 
which supposes previous publication ; or "viva voce 
or lastly by writing or printing ; the mode of noti- 
fication being immaterial, provided only that it be 
sufficiently public and perspicuous. After laws are 
prescribed in the usual and proper way, if the sub- 
ject chooses to remain in ignorance of them, he 
must abide by the consequences of that ignorance." 
(Blackst. Com. p. 8.) 

With regard to the papal infallibility as 
defined by the late Vatican Council, Car- 
dinal Antonelli declared in a letter to the 
Primate of Belgium, that it was to be 



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believed by all the faithful, without any 
further notification. 

29. A case of conscience proposed some 
time ago, was as follows : A penitent refuses 
to believe in papal infallibility until it has 
been solemnly promulgated, because, as 
this penitent alleges, it is a probable opin- 
ion that no law binds except when sol- 
emnly promulgated in the various provinces 
and cities of the respective countries. 

The solution is very simple. The 
penitent cannot be absolved, as he incurs 
formal heresy by his conduct, as has 
been sufficiently explained. 

30. Again, the question has been de- 
bated, whether the ordinaries of the vari- 
ous dioceses have the right of reviewing 
pontifical decrees before promulgating them 
in their own dioceses. 

Those who hold the affirmative are the 
Gallicans and followers of Richer. They 
say that each bishop was placed by the 
Holy Ghost to rule the flock intrusted to 
his care; hence he has the right of deter- 
mining what is expedient or inexpedient for 
the faithful of his diocese. Therefore, say 
they, each bishop may examine pontifical 



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decrees, and if he finds them injurious to 
his diocese, reject them. 

31. This opinion, as attributing to bish- 
ops any right whatever of reviewing or 
repudiating such laws, is at present ut- 
terly untenable. It has been defined by 
the late Council that the Pope has ordi- 
nary and immediate jurisdiction over the 
entire Church. 

In matters of discipline, however, it may 
happen that decrees of sovereign pontiffs 
may be less adapted to one place than to 
another. In such a case the ordinary may 
remonstrate with the Pope and communi- 
cate to him the adverse circumstances, and 
thus have the law withheld. 

32. In some countries of Europe, the 
" placetum regium " was in force ; that is, 
the permission of the civil power had to 
be obtained before the pontifical decrees 
could be promulgated. To some Catholic 
princes this privilege had been accorded to 
a limited extent. 

But afterward it was claimed as a right 
not merely by Catholic rulers, but even by 
Protestant princes. Thus but lately a law 
was passed in the Prussian Diet, making it 



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a penal offence for any bishop or priest to 
publish pontifical decrees, without having 
previously obtained the consent of the civil 
authority. 

The Church, it is needless to say, can 
recognize no such rights in any secular 
power. She is supreme and independent, 
and therefore can admit of no intermed- 
dling in her authority. 

§ 7. COUNCILS. 

33. A council is defined: 

" A meeting of Catholic prelates, legitimately held, 
in order to discuss and define matters of faith, morals, 
and discipline." (Sogl. c. ii. § 33. p. 63. vol. i.) 

To be legitimate, it must have three 
requisites : it must be properly convoked, 
rightly celebrated, and duly confirmed ; 
in other words, a council must be called 
together by the Roman pontiff ; it must 
be celebrated and presided over by him 
or his legates ; and finally it must be con- 
firmed by the same authority. 

This applies more particularly to a 
general council. This volume being an 
introduction to a particular council, we 



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will say a few words on the latter. Besides 
ecumenical councils, there are national or 
plenary, and provincial councils, and also 
diocesan synods. 

34. A national or plenary council is a 
meeting of all the bishops of an entire 
nation or kingdom. It is convoked by the 
primate, patriarch, or prelate holding the 
place of a primate. 

Now it may be asked, does the Arch- 
bishop of Baltimore, by virtue of the " prae- 
rogativa loci/' possess the authority of con- 
vening a national council ? We answer in 
the negative. The " prerogative of place 99 
is simply a privilege of honor, not of ju- 
risdiction, including no primatial rights 
whatever. It is merely, as the decree of 
the Holy See states : 

" That privilege by which the actual Archbishop 
of Baltimore takes precedence of all the archbishops 
of the United States, without any regard to promotion 
or ordination ; and by which he occupies the first 
seat in all councils, assemblies, and meetings." (Deer. 
Aug. 15, 1858.) 

As is evident, this includes no jurisdic- 
tion whatever. National councils are also 
termed plenary, for the reason that the 



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entire or plenary episcopate of a nation is 
represented. 

35. Provincial councils consist of the 
bishops of an ecclesiastical province ; they 
are convoked by the metropolitan, and 
should be held every three years. (C. Trid. 
sess. xxiv. c. 2. Ref.) Formerly, also, graver 
questions bearing upon faith and morals 
were determined on by national and pro- 
vincial councils. At present these matters 
are reserved to the Pope or an ecumenical 
council. These councils, therefore, are 
restricted to matters referring to the polity 
or administration of the respective nations 
or provinces. 

36. This, however, does not preclude all 
questions of faith from being made the 
subject of their discussions. They may 
indeed explain, yet not define dogmas ; 
they may promulgate, yet not make ; they 
may discuss, yet not determine. This is 
well expressed by the Fathers of Baltimore : 

" The chief duty of provincial as well as plenary 
councils, is not merely to provide for the promulgation 
and fulfilment of the general laws made in the ecu- 
menical councils or by pontifical constitutions ; bu** 
also to correct abuses . . . and guard the principles 



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of holy Church against the machinations of innova- 
tors.' (C. Plen. Bait. II. n. 57. p. 46.) 

Their acts and decrees must be sent to 
Rome to be reviewed and approved before 
they can be promulgated, as Sixtus V. has 
declared. 

37. Diocesan synods are held by the 
bishop and clergy of the respective dioceses. 
In them the decrees of national ' and 
provincial councils are promulgated ; and 
diocesan disciplinary matters examined. 
The acts are not sent to Rome, nor is any 
further approbation necessary. The de- 
crees or statutes may be promulgated forth- 
with. It is not a little encouraging to see 
that in many dioceses of the Union, bishops 
are holding such synods, and thus promot- 
ing harmony and good will between them- 
selves and their priests. A law that is 
enacted with the consent or counsel of the 
clergy will assuredly meet with a ready and 
cheerful compliance. May we hope that 
this noble example thus set by many of 
our bishops will become the universal 
and permanent practice throughout these 
States? 



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§ 8. COLLECTIONS OF THE SACRED CANONS. 

38. We come to another of the foun- 
tains of ecclesiastical jurisprudence, name- 
ly, the collections of the various decrees, 
constitutions, etc., termed canons. 

We shall not dwell on the collections 
made by the fathers of the Eastern 
Churches ; nor shall we speak of the primi- 
tive collections in the Western Churches, 
made by Dionysius Exiguus in the begin- 
ning of the sixth century. We pass to 
that of Isidor Mercator, or, as he is not 
unfrequently styled, Peccator. This collec- 
tion was made in the early part of the ninth 
century. Besides the preface, it contains : 

1. The order of celebrating a council. 

2. Fifty canons of the apostles. 

3. Epistles and constitutions of the 
earlier pontiffs, from St. Clement to Mel- 
chiades (t 3 1 3)- 

4. Decrees of the Council of Nice (325)* 
as well as of other councils, both Latin 
and Greek. 

5. Decretal epistles of various succeed- 
ing Popes, from Sylvester (t 335) to Gre- 
gory the Great (t 73 1 ). 



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39. The authenticity of this collection 
has never been correctly ascertained. 
Suffice it to say, that it obtained the force 
of a genuine and authentic collection both 
in the Eastern and Western Churches. For 
seven hundred years, that is, from the ninth 
to the fifteenth century, all jurisprudents 
and theologians looked upon it as genuine. 
Cardinal Cusan, in the fifteenth century, 
was the first one who questioned and im- 
pugned its authenticity. The Centuriators 
of Magdeburg, a body of Protestant writers 
who flourished in the sixteenth century 
(1561), claim to have been the original dis- 
coverers of the imposition. That, however, 
this merit belongs to Cardinal Cusan, any 
one who will but examine his excellent 
work entitled " Concordantia Catholica," lib. 
iii. cap. 2, will easily ascertain. 

40. Suspicion being once aroused, jur- 
ists and theologians of all shades began 
seriously to inquire into the character of 
this collection. The arguments adduced 
by them leave no doubt as to the spurious 
nature of the Isidorian collection. They 
may be summed up as follows : 

1. The silence of the ancient writers. 



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For although the decretal epistles of the 
collection are chiefly directed partly to the 
laity, partly to the bishops of Germany, 
Italy, France, yet they are not mentioned 
by the eight previous Ecumenical Councils, 
nor by the old fathers and writers, nor by 
Dionysius the Little, who, it must be borne 
in mind, employed the utmost diligence in 
compiling his collection ; nor, finally, by any 
other writers opposed to the papacy, whose 
greatest interest it would have been to allege 
them, had they really existed. 

2. Several texts of Sacred Scripture, 
cited in the decretal epistles of the first 
three centuries, are taken from the version 
of St. Jerome, which did not yet exist. 

3. Names such as archiflaminus, pri- 
mate, archbishop, apocrysiarius, which were 
not in use in the first three centuries, occur 
in decrees of that period ; while no mention 
whatever is made of the most important 
events of that epoch, such as the persecu- 
tions against the Christians. 

4. False consular dates, consuls that 
never existed, and whose names never oc- 
cur in the consular annals, are inscribed on 
many letters. 

3 



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5. The rudeness of style, so different 
from the elegance of the more ancient 
writers ; then the sameness of diction and 
phraseology, recurring in epistles pur- 
porting to have been written by different 
authors ;. moreover, the similarity in the 
arrangement of matter; all these show be- 
yond doubt that they are forged. 

41. But it may be asked whether all the 
documents are spurious. In answer to 
this, it may be said: 

1. That Tsidor made use of some au- 
thentic documents, such as the decretal 
letters, taken from the collection of Diony- 
sius the Little. 

2. He inserted many fictitious instru- 
ments, simply fabricated by himself, such 
as all the decretal epistles of the sovereign 
pontiffs from St. Clement to Siricius, and 
not a few 7 from Siricius to Leo the Great. 

3. He interpolated some genuine docu- 
ments. Thus he foisted in the two last 
chapters of the epistle of Pope Vigilius to 
Profuturus. This whole question is ably 
discussed by the brothers Balbrini, De An- 
tiquis Coll. Can. part. 3. c. 6. § 5. 

42. As to the place or country whence 



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the collection of Isidor issued, some think 
it was from Spain. But there the collection 
of Isidore of Seville was used, and hence 
it is scarcely probable that it originated 
there. The next place assigned is the 
western part of France. In fact all the 
manuscripts of this collection are of French 
origin ; the false decretals were first cited 
only by French writers. 

43. The date of compilation of the 
Isidorian collection is no less uncertain. 
The Protestant writer David Blondel 
(1628) asserts that it contains passages 
almost literally transcribed from the Council 
of Paris, held in 829. It must have been 
therefore made at a later period. The 
same is shown with regard to the Council 
of Aix-la-Chapelle, in 836. 

But in 857 its decrees are cited in a 
synodal letter of King Charles, so that the 
collection must have come into use between 
the years 829 and 857. (Walter, Jus. Can. 

§91-) 

44. We shall now consider the influence 
this collection exercised on ecclesiastical 
discipline. It has been represented by De 
Marca (De Concord. Imperii et Sacerd.) 



36 SECOND PLENARY COUNCIL 

that by means of the false Isidorian de- 
cretal epistles, the episcopal as well as the 
secular authority was unduly depressed, 
their status materially changed, while the 
papal pretensions flowed from these decre- 
tals. This opinion was circulated through- 
out Germany by Febronius. Lately it has 
again been put forward by some Munich 
professors who refused to submit to the 
late Vatican Council. 

Dollinger, in his famous declaration of 
March 28th, 1871, affirms that an accurate 
examination would prove : 

" That the theory of Papal Infallibility had been 
introduced into the Church solely by a series of calcu- 
lated inventions and falsifications, and was afterward 
spread and maintained by force, by the suppression 
of older teaching, and by the many means and arti- 
fices which are at the disposal of the ruling power." 

By this series of calculated inventions 
and falsifications, he means none other 
than the Isidorian collection, as he openly 
avowed in the columns of the Augsburg 
Allgemeine Zeitung, under the signature 
" Janus.' 

45. Prescinding from other dogmatic 
questions, we ask, is this imputation well 



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founded ? Did the Isidorian decretals 
materially change the ecclesiastical polity 
in the ninth century? Did papal infalli- 
bility originate with them ? 

We answer negatively. As far as the 
power of the bishops is concerned, these 
decretals hold the common doctrine of the 
Church, namely, that it is of divine origin. 
With regard to the Roman pontiffs, nothing 
more is advanced than had been commonly 
believed, namely, that the primacy of juris- 
diction over the entire Church was con- 
ferred upon the apostolic chair, in the 
person of Peter, directly by Christ himself; 
that the Roman chair had always preserved 
intact the divine traditions ; that with it 
all other Churches must hold communion ; 
that papal decrees are binding on all the 
faithful ; that the more important questions 
should be referred to the Holy See. The 
right of appealing from the decision of 
bishops to the Holy See was also affirmed. 
(Walter, Jus. Can. 1. c. cap. ii. § 92. p. 
165 seq.) 

46. Now all these doctrines had been 
from the very beginning both taught and 
practically carried into effect in the Church. 



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The Isidorian decretals merely convey this 
universal teaching. How otherwise would 
they have been so generally received ? 
While some of them therefore are spurious, 
others are genuine ; and even those that 
are spurious only reflect the doctrine 
commonly believed at that period. 



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CHAPTER III. 

Of the Roman Pontiff. 

See Cone. Plen. Bait. II. tit. ii. cap. i. p. 34 : Kenrick, Dogm. vol. 
i. tract, ii. cap. vi. et xviii. : Natalis Alexander. Hist. Eccl. 
dissert, iv. in sec. i. schol. iii. : Cone. Vaticanum I. sess. iv. 
c. iii. 

§ 9. PRIMACY. 

47. Errors of Richer. — Having been 
created syndic of the theological faculty of . 
the Sorbonne, he defended the thesis that 
the primacy of jurisdiction had been con- 
ferred by Christ directly upon the whole 
Church, that is, the body of the faithful, 
which delegates it to the Pope and the 
various other ministers ; that therefore, as 
the soul makes use of the eyes and hands 
of the body to convey and execute its com- 
mands, so does the Church, which has re- 
ceived all power immediately from Christ, 
select the Pope, bishops, and priests to be 
the instruments of carrying out its laws. 

48. This would evidently make the 



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SFCOND PLENARY COUNCIL 



ecclesiastical polity simply democratic or 
republican. 

The Constitution of the United States 
declares that all power is inherent in the 
people, who agree or consent to choose 
certain officials to execute their sovereign 
will. The highest legislative body of the 
country consists of the Senate and House 
of Representatives, who are but the dele- 
gates of the people. 

The President is the executive. He 
must see that the laws made by Congress 
are faithfully carried out ; but he cannot 
originate a law himself. This system 
Richer would apply to the Church. So 
applied it is essentially Protestant, not 
Catholic. Sectarians of all shades call or 
banish their ministers at will, and hold 
that there is no difference between the 
clergy and the laity. 

Richer retracted his heresy in the pres- 
ence of Cardinal Richelieu, apparently with 
perfect sincerity, and died in 1631. (Apud 
Tarq. Jus. Publ. p. 100.) 

49. The Catholic Church holds that 
the primacy is the power of ruling over 
the entire Church. The end for which it 



OF BALTIMORE, 



41 



was instituted was, that a head being con- 
stituted, all occasion of schism might be 
cut off. The primacy is the corner-stone 
of ecclesiastical unity. Now this is two- 
fold : unity of faith, and unity of external 
communion. The latter is necessary to 
preserve the former. 

Hence the primacy relates directly and 
primarily to the ecclesiastical polity ; sec- 
ondarily and but indirectly to matters of 
faith. 

50. It is, moreover, a doctrine of divine 
revelation that the primacy is conferred 
directly and immediately on the Pope as 
the successor of St. Peter ; that it is by 
divine appointment inseparably united 
with the See of Rome. (See Soglia, vol. i. 
lib. ii. cap. i. § 16, p. 178.) 

This primacy of jurisdiction, it has been 
contended, is but extraordinary, that is, to 
be exercised only when bishops neglect 
their duties ; or also, that it is but me- 
diate, that is, to be exercised, not by the 
Pope himself, but merely through the 
bishops. 

This opinion is refuted by Natalis Alex- 
ander, dissert, iv., in sec. i., where he says : 



SECOND PLENARY COUNCIL 



" The Roman pontiff has supreme authority over the 
entire Church, which power is ordinary, that is, capa- 
ble of being exercised not merely to supply the neg- 
ligence of prelates, but constantly, and over all the 
faithful as well as over the prelates of the whole church, 
because he is the pastor of pastors." 

51. In other words, the Pope has the 
same jurisdiction over all the dioceses in 
general, as bishops over theirs in particular. 
This is expressed by the late Vatican Coun- 
cil, Constit. Dogmat. sess. iv. cap. iii., as 
follows : 

" Wherefore we teach and declare that the Roman 
Church, under divine Providence, possesses a headship 
of ordinary ' power over all other Churches, and that 
this power of jurisdiction of the Roman pontiff, which 
is truly episcopal, is immediate, toward which the pas- 
tors and the faithful of whatever rite and dignity, 
whether singly or all together, are bound by the duty 
of hierarchical subordination and of true obedience, 
not only in all things which appertain to faith and 
morals, but likewise in those things which concern 
the discipline and government of the Church, spread 
throughout the world, so that being united with the 
Roman pontiff, both in communion and in profession 
of the same faith, the Church of Christ may be one 
fold, under one chief shepherd. This is the doctrine 
of Catholic truth, from which no one can depart, 
without loss of faith and salvation." 

52. Dollinger says of this passage : 



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43 



" The wording is so carefully arranged that no other- 
position and authority remains for the bishops than 
that of papal commissaries or delegates. And in this 
manner, as every one acquainted with Church history 
and with the fathers will confess, the episcopacy of 
the early Church is essentially dissolved, and an apos- 
tolical institution, to which according to the judgment 
of the fathers the highest importance and authority is 
due, is subtilized to a bodiless shadow. 

" For no one will think it possible that there should 
exist two bishops in the same diocese, one of whom is 
at the same time Pope, the other being simply a bishop, 
and a papal vicar or diocesan commissary is not a 
bishop, is no successor of the apostles ; he may, 
through the powers conceded to him from Rome, be 
very mighty so long as his principal allows him to 
rule, just in the same way as a Jesuit or mendicant 
friar to whom the Pope has granted abundance of 
privileges, possesses great power." (Declar. March 
28, 1871, transl. of N. Y. Herald.) 

53. Dollinger here asserts: 

1. That papal infallibility makes bish- 
ops but papal vicars, or representatives, 
holding entirely from the Pope. 

2. That to assert that the Pope has the 
same ordinary jurisdiction over the entire 
Church which each bishop has over his 
diocese involves repugnance. 

Now neither of these imputations is cor- 
rect. Bishops indeed possess ordinary 



44 



SECOND PLENARY COUNCIL 



jurisdiction, but they hold it subordinately 
to that of the Pope. Nor does the second 
supposition involve any repugnance, as the 
same thing exists in all courts of judica- 
ture, where various judges of different 
benches exercise ordinary jurisdiction 
over the same district or persons. Dol- 
linger himself, in his " History of the 
Church," § 33, on the primacy, asserts that 
the Pope is the pastor, not merely of the 
faithful throughout the world, but also of 
the bishops themselves. 

§ IO. INFALLIBILITY AND GALLIC ANISM. 

54. The doctrine of the late Vatican 
Council is couched in the following words : 

" We teach and define it to be a doctrine divinely 
revealed, that when the Roman pontiff speaks ex ca- 
thedra, that is, when in the exercise of his office of pastor 
and teacher of all Christians, and in virtue of his su- 
preme apostolical authority, he defines that a doctrine of 
faith and morals is to be held by the universal Church, 
he possesses through the divine assistance promised to 
him in the blessed Peter, that infallibility with which 
the divine Redeemer willed His Church to be en- 
dowed, in defining a doctrine of faith or morals ; and 
therefore that such definitions of the Roman pontiff 
are irreformable of themselves, and not by force of the 
consent of the Church thereto." (Sess. iv. c. iv.) 



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45 



From this we infer : 

1. Infallibility does not mean impec- 
cability. 

2. The Pope is infallible only in his 
official capacity, and with regard to faith 
and morals. Hence scientific researches 
or political questions do not come directly 
within the reach of infallibility ; nor are the 
private opinions of a pontiff, even when 
written or printed, and treating of faith and 
morals, comprised in the definition. Bene- 
dict XIV., for instance, wrote many treatises 
bearing on faith and morals, even as Pope; 
yet no one attributes inerrancy to any of 
them. 

3. Papal definitions "ex cathedra" are ir- 
reformable; that is, obtain full force of law 
of themselves, and not because the Church 
consents to, or receives them. 

55. The latter is evidently directed 
against, and is the contradictory of, one of 
the famous propositions of the Gallican 
Declaration issued in 1682; the fourth 
proposition of which is as follows : 

" That although the Pope has the principal voice 
in matters of faith, and that his decrees reach all the 
Churches and each Church in particular, yet his deci- 



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SECOND PLENAR Y CO UNCIL 



sions are not irrevocable — c nec tamen irreformabile 
esse judicium ' — unless confirmed by the consent of 
the Church." (Ap. Darras, vol. iv. p. 365.) 

56. From the primacy emanates the 
authority of erecting bishoprics. An epis- 
copal see is generally located in one of the 
principal cities, from which the diocese it- 
self takes its name. This perhaps is owing 
to the fact that formerly bishoprics were 
instituted in all larger cities. Thus, the 
episcopal see erected at Newark is termed 
the Diocese of Newark ; nor would it be 
correct to say " Diocese of New Jersey," 
although its jurisdiction extends over the 
entire State. 

By virtue of the primacy, the Pope is 
the chief pastor of all the faithful. To him 
therefore belongs the power of appointing 
bishops, as being pastors subordinate to 
him. 

The translation of a bishop from one 
see to another can take place only by his 
authority. Innocent 1 1 1., cap. ii. De Trans- 
lat. Episc, speaks thus : 

" As the spiritual bond is stronger than the car- 
nal, there can be no doubt that Almighty God has 



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47 



reserved to his authority alone, the dissolution of the 
spiritual matrimony that exists between a bishop and 
his church." 

The Roman pontiff is the interpreter of 
the divine will. In like manner, the Pope 
only can depose bishops, and assign them 
coadjutors. 

57. The temporal power of the Pope is 
in the present condition of affairs neces- 
sary to the free exercise of his spiritual 
authority, which requires a constant and 
free intercourse with all the faithful spread 
throughout the world, as the Vatican 
Council has declared. This teaching is 
fully concurred in by the Fathers of Balti- 
more : 

" Although the temporal power of the Roman 
pontiffs, or the patrimony of Peter, was not imparted 
by God in the beginning, and does not pertain to the 
essence of the primacy, it seems nevertheless most 
useful, and in the present state of affairs, to a certain 
extent, necessary, in order that the pontiff may inde- 
pendently exercise for the welfare of the Church the 
rights of his primacy. For the Catholic Church, 
founded and instituted by Christ for the eternal hap- 
piness of men, obtained by virtue of her divine insti- 
tution the form of a perfect society, and therefore 
should enjoy that liberty which will enable her to 



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SECOND PLENARY COUNCIL 



perform her office, without being subject to any civil 
power." (C. Plen. Bait. II. tit. ii. c. i.) 

To this declaration, the Fathers add the 
following practical injunction : 

"Wherefore we enjoin, that in all the churches of 
these States, wherever they may exist, annual collec- 
tions shall be taken up on the Sunday within the 
Octave of St. Peter and St. Paul, or at some other 
time more convenient in the judgment of the ordinary 
of the diocese, to be announced by the pastor on the 
previous Sunday." (L. c. C. Bait.) 

The Fathers also express in the fullest 
and most explicit manner their entire de- 
votedness to the Holy See. 

58. Infallibility had not yet been defined. 
Hence no explicit mention is made of it 
by the American prelates. But their sin- 
cere profession of absolute submission to 
the Holy See, leaves not the slightest 
shadow of doubt that they would unre- 
servedly have accepted and promulgated it 
had it been defined. When therefore some 
of these prelates afterward in the Vatican 
Council seemed to oppose this prerogative, 
it was evidently not because they ever 
doubted the doctrine itself, but rather 
because they lived in the midst of those 



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49 



who would but too glady seize the slightest 
pretext of representing Catholics as dis- 
loyal citizens, owing allegiance to a foreign 
prince, and because to Americans anything 
like absolutism is repugnant, so that this 
doctrine might unfavorably predispose 
against, and repel from the Church many 
who otherwise would be its generous advo- 
cates. 

59. It is perhaps to be lamented that 
in the Vatican Council greater moderation 
was not displayed during the theological 
discussions preceding the definition itself. 
Yet in the Council of Trent far more feel- 
ing was manifested on matters of less im- 
portance. Theologians, as is well known, 
are plain at times in handling their oppo- 
nents, yet this cannot be said to be incom- 
patible with perfect liberty of speech, as 
Dollinger thus objects : 

" In the whole history of the Church, I only know 
of one general council in which, as in this last (Vatican 
Council), those in power prevented any thorough dis- 
cussion of the tradition, and this was in the Second 
of Ephesus, in the year 449 : there, in the so-called 
Synod of Thieves, this was done by force and by 
tumultuous tyranny. In the Vatican Council, the 
order of proceeding imposed on the assembly, the 
4 



50 SECOND PLENARY COUNCIL 



papal committee and the will of the majority suffered 
no regular and critical examination to be made. . . . 
If you notwithstanding assert that the Vatican As- 
sembly was entirely free, you take the word * free ' 
in a sense which theological circles do not generally 
attach to it. A council is only then theologically free, 
when free examination and discussion of all objec- 
tions and difficulties has taken place. . . . That not 
even the most modest beginning was made in this 
direction ; that indeed the immense majority of the 
bishops from Latin countries wanted either the will 
or the power to distinguish truth from falsehood, 
right from wrong, is proved by the pamphlets which 
appeared in Italy." (Declaration, March 28, 187 1.) 

It seems strange that so great an his- 
torian should thus define the freedom of a 
council. Were it necessary to accept Dol- 
linger's meaning of the term " free," we 
should be compelled to deny the possibility 
of freedom of speech altogether. For then 
no assembly of men could be termed free, 
as a moral pressure will always be brought 
to bear on the adversaries of either party. 

Assuredly, the prelates of the minority 
in the late Vatican Council had perfect 
liberty to express their views and vote 
accordingly. But there are certain limits 
to discussions. Unless these are observed, 
a council must end in a farce. Now, none 



OF BAL TIM ORE. 



51 



but such parliamentary restraints or rules 
were imposed on the Fathers of the Vati- 
can Council. Were they, in consequence, 
deprived of freedom of speech ? 

§ II. HIERARCHY OF THE CHURCH. 

60. Ecclesiastical hierarchy consists of 
bishops, priests, and other ministers. The 
authority of the Church itself is divine, and 
in no sense does it depend upon the civil 
power. It is entirely independent and 
absolutely supreme. 

The Fathers thus speak of the teaching 
body : 

" Bishops, therefore, being the successors of the 
apostles, whom the Holy Ghost placed to rule the 
Church of God, which he hath purchased by his own 
blood, when, being in communion with their head — 
that is, the Roman Pontiff, the successor of Peter and 
Christ's Vicar on earth — they unanimously define a 
doctrine, whether gathered together in a general 
council, or dispersed throughout the world — then, in 
such a case, they are endowed with the gift of iner- 
rancy in such a manner that as a body they can never 
fall away from the faith, or define anything contrary 
to the doctrine revealed by God." (C. Plen. Bait. II. 
tit. ii. p. 40.) 

This profession of faith does not ex- 



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SECOND PLENARY COUNCIL 



elude the belief in papal infallibility as set 
forth by the Vatican Council. It rather 
includes it, in admitting that the Pope is 
the chief seat and organ of inerrancy. 

It can truly be said that infallibility re- 
sides in the Roman pontiff solely ; and 
also in the College of Bishops, when united 
with him ; so that, theoretically speaking, 
a definition is infallible in two ways : first, 
as emanating from the Roman pontiff 
alone, without the consent of the bishops ; 
secondly, as proceeding from the bishops, 
consenting with and adhering to the Pope. 

61. We may here insert the words of 
Archbishop Kenrick : 

"We do not, however," he says, "approve of that 
mode of speaking whereby the Pope is said to be 
infallible of himself (se solo) ; for of him as a private 
doctor, scarcely any Catholic theologian is known to 
have advocated the prerogative of inerrancy. Nor is 
he alone as Pontiff ; for when he is teaching, the Col- 
lege of Bishops always adheres to him. as ecclesiasti- 
cal history testifies. Pontifical definitions, therefore, 
when accepted by the College of Bishops, whether in 
council or in their sees, whether subscribing to the 
decrees, or simply not objecting to them, have infalli- 
ble force and authority, which no Catholic can deny." 
(Kenrick, Dogm. vol. i. tract, ii. De Eccl. cap. xviii.) 



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53 



§ 12. CONFERENCES. 

62. The Fathers of Baltimore thus 
earnestly recommend theological confer- 
ences : 

"Theological conferences will go far to supply the 
rarer celebration of diocesan synods. They will pre- 
serve in the minds of all a knowledge of sacred science ; 
promote a sound and uniform practice for the direc- 
tion of souls ; dispel mental laziness ; and give a 
ready occasion of eliminating abuses. 

"It is therefore our wish, that in cities, where 
priests can easily assemble, such conferences should 
be held four times a year ; either on the Mondays of 
the week preceding the ember days, or at any other 
convenient time to be designated by the ordinary. 
In rural districts, twice a year will be sufficient. All 
priests having charge of souls, whether secular or 
regular, should be present at them." (C. Plen. Bait. II. 
n. 68. p. 52.) 

The utility of these reunions of the 
clergy can scarcely be over-estimated. We 
venture to say, however, that they will be 
productive of greater good when the cler- 
gy are left free to select and arrange the 
various matters pertaining to such confer- 
ences. Too much episcopal interference 
would but render the entire affair odious, 
and irritate the minds of the clergy. 



54 



SECOND PLENARY COUNCIL 



63. The paramount importance of these 
meetings is thus stated by the Third 
Council of Cincinnati : 

" The establishment of theological conferences was 
earnestly recommended. Such reunions of the clergy, 
besides promoting that fraternal feeling which is so 
sweet a bond of Christian and clerical union, strongly 
tend to encourage the study of sacred things, to elicit 
zeal for the salvation of souls, and to establish uni- 
formity of practice in minor rites and observances." 

In like manner, Pope Pius IX., Encycl., 
March 17, 1856, thus addresses the bishops : 

" Lest, however, priests . . . should neglect their 
studies, . . . we most ardently desire, that as far as 
possible, you should establish in your dioceses theo- 
logical conferences. " (Ap. C. Plen. Bait. II. 1. c.) 

64. That they may be profitable, and not 
degenerate into a mere waste of time, order 
and method must prevail in them. At 
Rome, where separate conferences on moral 
theology and rubrics were held monthly 
at the Appallinaris and Monte Citorio, in 
the Convent of the Lazarists, one of the 
younger theologians was appointed at each 
preceding meeting, or by the special com- 
mittee, to work out and carefully prepare in 
writing one of the theses which are issued 
in pamphlet form for the entire year. 



OF BALTIMORE. 



55 



After the reading of the thesis, objec- 
tions were in order. We have not un- 
frequently had the pleasure of listening to 
the learned yet eminently practical diffi- 
culties proposed by such men as Fathers 
Perrone, Franzelin, etc. 

The theoretical and speculative opinions 
of the younger clergy were often modified 
by the practical knowledge of men grown 
gray in the professor's chair as well as in 
the pulpit ; in the confessional no less than 
in deep study. 

In these reunions were brought together 
the scientific training of the younger stu- 
dents and the riper judgment of the more 
venerable theologians; one was compared 
with the other; and both were thus trimmed 
and set right. 

Such is the beneficial result of these 
meetings. 



56 SECOND PLENAR V CO UNCIL 



CHAPTER IV. 

Of the Councillors of the Bishops. 

See Council Bait. tit. cap. v. p. 53 seq. : Walter, Kirchenrecht, 
lib. iii. c. i. § 138, p. 276 : Soglia, torn. ii. lib. i. c. iii. p. 37. 

§ 13. ORIGIN OF CANONS. RIGHTS OF 

CHAPTERS. 

65. The Fathers of the Second Plenary 
Council of Baltimore thus speak : 

" As bishops, especially in these States, are so 
burdened with labors, that of themselves alone they 
can scarcely comply with all their duties, they should 
select priests . . . who will assist them by their wise 
counsels. In this manner the second sacerdotal 
order will give assistance to the first, and by the 
common consent and suffrage of all, the unity of ad- 
ministration will be rendered firm, and everything 
will be done gently, yet not without constancy, for 
the greater glory of God.'' (L. c. p. 53. n. 70.) 

From the earliest ages, bishops were 
wont to consult the more venerable among 
their clergy in the administration of their 
dioceses. 



OF BALTIMORE. 



57 



In the fifth century, St. Augustine gave 
them a rule, as they lived in the episcopal 
residence, and constituted, as it were, the 
bishop's senate. In 760, Chrodogang, 
Bishop of Metz, laid down directions for 
their guidance, which remained in force 
till the twelfth century. Thus far, they 
lived in community. But when gradually 
they had acquired greater wealth, they 
preferred living in their own houses, 
meeting, however, at stated times for con- 
sultation. 

The place of meeting was called " chap- 
ter;" a word probably taken from the rule 
of St. Benedict, who applies the term to 
the room where the brothers meet in order 
to read "a chapter" of their rule. This 
seems also to have given rise to the ap- 
pellation of " cathedral chapter," which sig- 
nifies the entire number of canons attached 
to the cathedral church. 

For the same reason the canons them- 
selves were termed " capitulars." They 
are now commonly styled " canons," per- 
haps because their names were written on 
a public list ; or, also, because they lived 
according to a rule or canon. 



58 



SECOND PLENARY COUNCIL 



66. A " chapter " is an ecclesiastical cor- 
poration, and as such meets apart, with- 
out being convoked or presided over by 
the bishop. It also transacts its business 
independently of him ; makes its own laws, 
and in every respect acts like any other 
corporate body, as far as regards its own 
internal affairs. 

When the episcopal see becomes va- 
cant, full powers of administration devolve 
upon it "jure communi," not merely by 
privilege. This holds good whether the 
vacancy is occasioned by the death of the 
incumbent or by translation to another 
see; whether by ecclesiastical deposition or 
voluntary renunciation, or even when the 
bishop is violently expelled by the civil 
government, in a manner that leaves but 
little hope of an early return. 

In a word, the " chapter " obtains com- 
plete administration of the diocese within 
certain prescribed limits, whenever the see 
becomes permanently vacant. 

67. By violent expulsion is meant that 
the bishop should either be led away cap- 
tive or forcibly driven from his see by 
foreign invaders, and detained by them in 



OF BALTIMORE. 



59 



such a manner that but little probability 
remains of his ever being restored to his 
flock. In such a condition only is the 
spiritual bond between the bishop and his 
church considered broken, and the see 
consequently vacant. 

Should however the ordinary be banish- 
ed by the civil authority of his own diocese, 
the spiritual relationship would not thereby 
be severed, such a state being deemed but 
temporary. This case has of late but 
too frequently occurred in Italy and other 
European countries. Bishops were ejected 
from their sees, either because they were 
obnoxious to the Government or unwilling 
to accede to its unjust demands. Under 
these circumstances the exiled prelate re- 
mains in possession of ordinary or original 
jurisdiction ; his vicar general in the mean- 
while taking his place, as he is unable per- 
sonally to administer the diocese. (See 
Walter, 1. c. p. 282.) 

68. The vicar general constitutes one 
and the same moral person with the bishop, 
and holds from him. When therefore his 
jurisdiction ceases, that of the vicar gen- 
eral also lapses. In all instances, therefore, 



60 SECOND PLENARY COUNCIL 

where the power of the bishop expires, as 
by death, renunciation, deposition, trans- 
lation, or permanent captivity in a foreign 
land, the jurisdiction of the vicar general 
" ipso facto " becomes extinct. 

While he possesses some privileges in 
virtue of the common law, he neverthe- 
less acquires them solely by the appoint- 
ment of the bishop. The same, by rea- 
sons of analogy, it seems to us, applies 
to rural deans and others, upon whom 
the bishop may have conferred any spe- 
cial jurisdiction. It lapses with that of 
the bishop. 

The chapter cannot administer the dio- 
cese collectively, but is bound by canon 
law to appoint a vicegerent or vicar within 
eight days after the vacancy of the see 
takes place. Should it neglect doing so, 
this duty will devolve on the metropolitan. 
The one thus selected is termed the capit- 
ular vicar. He governs the diocese in the 
name of the entire chapter. (Cone. Trid. 
sess. xxiv. De Ref. cap. xvi.) 

69. A candidate for the vacant see, or 
one who has been proposed or nomi- 
nated, cannot become the administrator or 



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6l 



capitular vicar. The reason is, that he is 
obliged to give a strict account of his ad- 
ministration to the incoming bishop. Now 
it would be futile as well as void of all 
meaning that the administrator should 
render an account to himself. Direct 
deviations from this rule have, however, 
recently occurred in this country. 

Finally, it may be observed that during 
the vacancy nothing should be changed 
or innovated — " nihil innovetur." 

§ 14. ADMINISTRATION OF A DIOCESE, SEDE 
VACANTE, IN THE UNITED STATES. 

70. It may be asked upon whom devolves 
the administration of a vacant diocese in 
this country. There being no chapter or 
canons, it cannot pass to them ; nor can it 
go to the vicar general, whose jurisdiction 
ceases with that of the bishop. 

The Fathers of Baltimore say: 

" Each bishop can communicate the faculties he 
has received from the Holy See to worthy priests 
that have labored in the diocese ; especially should 
he do so at the approach of death, so that during the 
vacancy of the see there will be some one to take the 
place of the departed bishop, until the Apostolic See, 



62 SECOND PLENARY COUNCIL 



having been duly informed at the earliest convenience, 
should provide for the diocese in some other way." 
(Cone. Plen. Bait. II. no. 96. p. 67.) 

71. This passage implies two things: 
First, that the bishop has during life the 
power of communicating the faculties re- 
ceived by him from the Holy See, to esti- 
mable priests of his diocese, in such a 
manner that their faculties will continue 
after his death. Secondly, that the bishop, 
when in danger of death, may appoint a 
priest who will act as administrator " pro 
tempore " after his demise, until the Holy 
See shall, upon receiving due notice, make 
other arrangements. 

As such powers enabling a bishop to 
appoint a temporary administrator, are al- 
together extraordinary, not comprised in 
the provisions of ordinary ecclesiastical ju- 
risprudence, we confess that we are at a 
loss how to account for them. Suffice it 
simply to say that they seem to have been 
given our bishops by the Holy See, as 
would appear from a note appended to the 
decree just cited. 

As the text of the faculties granted by 
the Propaganda is not subjoined, we cannot 



OF BALTIMORE. 



63 



of course further expatiate on the matter. 
Nor can we show any parallel case in the 
common law of the Church. 

We suppose, however, that our situation 
in this country is of an exceptional char- 
acter. We have no corporate body of the 
clergy, upon which by common law juris- 
diction devolves, " sede vacante." We are, 
moreover, at no short distance from the 
Holy See, which consequently is incapable 
of designating an administrator as soon as 
the see becomes vacant. Hence arises 
the necessity of a regulation by which the 
diocese will be governed until the Apos- 
tolic See shall have received proper infor- 
mation and made permanent arrangements. 

72. Again the Fathers of Baltimore say : 

"But if at the demise of the archbishop or bishop, 
there is no priest to whom the aforesaid faculties were 
properly communicated ; or also should the see be- 
come vacant in any other manner than by the death 
of its prelate, then the metropolitan, or, in his default 
of taking the matter in hand, as also when the metro- 
politan see itself becomes vacant, the senior suffragan 
bishop, will designate some worthy priest who will 
administer the diocese, using the faculties contained 
in the first formula, until the Holy See, on receiving 
the necessary intelligence of the fact, shall dispose 



64 SECOND PLENAR Y CO UNCIL 

otherwise." (Ex Brevi Pii IX. 13 Jan., 1854, apud C. 
Bait. p. 68.) 

From all this we see : 

1. That any bishop, either during life or 
at the point of death, may delegate certain 
faculties to deserving priests, that will re- 
main in force after his death ; he may also 
appoint a priest to administer the diocese 
" ad interim " after his demise. 

2. Should this have been omitted, the 
metropolitan is empowered to make the 
appointment. 

3. In default of any action on the part 
of the metropolitan, this duty devolves on 
the senior bishop of the province. The 
same rule holds when the archiepiscopal 
see itself is vacant. 

4. When a see becomes vacant in any 
other manner than by the death of its in- 
cumbent, the appointment of an adminis- 
trator " ad interim," devolves on the metro- 
politan, or, in his default, on the senior 
suffragan bishop. 

5. In all these instances the appointment 
is but a temporary one ; the Holy See re- 
serving the right of either confirming or al- 
tering it, and making permanent provisions. 



OF BALTIMORE. 



65 



6. In all cases information must be sent 
to the Holy See at once. 

§ 15. BISHOP'S COUNCIL IN AMERICA. 

73. Thus far we have spoken of the 
bishop's senate, explaining the prescriptions 
of the common law of the Church, as well 
as of ordinary ecclesiastical jurisprudence. 
In European countries these rules are, with 
but few exceptions, still in force. 

In our country, the council is substi- 
tuted for the chapter ; the councillor for the 
canon. The Second Plenary Council of 
Baltimore reenacts the decree of the First 
Plenary Council of Baltimore, which reads 
thus : 

" The fathers deemed it advisable to exhort bish- 
ops to select in their dioceses, wherever it is possible, 
priests of mature age, conspicuous for learning, integ- 
rity, and administrative ability, whom they should con- 
stitute councillors, and whose advice they should, when 
opportunities present themselves, ask in the adminis- 
tration of the diocese. The custom, moreover, exist- 
ing in some dioceses, of calling them together once 
every month, on a determinate day, in order to discuss 
diocesan matters of importance, is recommended as 
being praiseworthy." (No. 71. p. 54.) 
5 



66 



SECOND PLENARY COUNCIL 



This decree then advises : 

1. That an episcopal council should be 
formed, consisting of the learned and ex- 
perienced priests of the diocese. 

2. That the bishop should consult them 
on affairs relating to the government of 
the diocese. 

3. That they should be called together 
once a month on a stated day. 

74. Nothing, it seems to us, could be 
more opportune than these recommenda- 
tions. Apparently, also, they have been 
carried into effect. Most of our bishops, 
if not all of them, have their council. Yet 
we venture to ask, does it exist generally 
also in reality, or merely in name ? Are 
its members formally consulted or called 
together at stated times ? 

If these conditions were complied with, 
would it not come to be true what the 
Fathers of Baltimore say, namely : 

" That greater harmony would be brought about in 
the administration of the diocese ; that things would 
be done more moderately, yet at the same time more 
firmly, for the greater glory of God and the salvation 
of souls." (P. 54.) 

A council, however, it is needless to say, 



OF BALTIMORE. 



6 7 



does not possess the rights of a canonically 
established chapter. Tt has no jurisdiction, 
nor does the administration of the diocese, 
" sede vacante," devolve upon it, as it is not 
a corporate body recognized by the com- 
mon law of the Church, although it ap- 
proaches perhaps as nearly as circum- 
stances in this country will allow, to the 
spirit as well as the letter of ecclesiastical 
jurisprudence. 

§ l6. VICAR GENERAL, AND OTHER OFFICIALS. 

75. The other officers of the episcopal 
curia are the vicar general, chancellor, 
notary, and secretary. 

The functions and privileges of the vicar 
general are thus described by Kenrick: 

" In most matters that relate to acts of jurisdiction, 
the vicar general is placed on a like footing with the 
bishop, whose vicegerent he is, so that they constitute 
but one and the same tribunal. The collation of 
more extensive faculties, however, is dependent on the 
will of the bishop ; as there are some that require a 
special mandate. The vicar general can grant facul- 
ties to priests together with the care of souls, as he 
may also revoke them for equitable reasons ; he has 
the power of dispensing with the publication of the 



68 



SECOND PLENARY COUNCIL 



banns of matrimony ; of imposing censures, and giv- 
ing approbation for hearing confessions. He can- 
not, however, take cognizance of the graver criminal 
causes, nor collate clerics to benefices, though he may- 
appoint such as are presented by the patron • he can- 
not convoke a synod, or visit the diocese \ nor can he 
absolve from cases reserved by law solely to the 
bishop ; he has no power of dispensing with an oath or 
a vow, nor with the diocesan statutes ; nor can he give 
letters dimissory, unless the bishop should be away 
from his diocese for a considerable time. He has origi- 
nal jurisdiction in the exercise of the ordinary faculties, 
and he may also communicate them to others without 
any special delegation of the bishop. But for the 
exercise of extraordinary faculties, he needs a par- 
ticular mandate or commission." (Kenrick, Mor* vol. 
i. tract, viii. § vi. p. 230.) 

76. As appears impliedly in this passage, 
the vicar general possesses by virtue of the 
ecclesiastical law all the ordinary faculties 
of the bishop. Now, besides the ordinary 
powers, the latter holds also such as are 
extraordinary. Such is, for instance, that 
of dispensing with the impediments of 
marriage. They are general laws binding 
on the entire Church. Now, no bishop can, 
"jure ordinario," enact any but particular 
laws for his own diocese, or dispense with 
them. The faculty, therefore, of dispensing 



OF BAL TIM ORE. 



6 9 



with impediments, requires a special man- 
date from the Pope. It is consequently an 
extraordinary power not vested in the epis- 
copal office. 

To exercise this authority, the vicar 
general stands in need of a special com- 
mission. As, in America, bishops are 
authorized by the Holy See to confer even 
extraordinary faculties on one or more 
priests of their dioceses, the vicar general 
may of course be invested with them. 

77. The bishop may constitute two or 
more vicars general, assigning to each a sep- 
arate district. He may also restrict their 
jurisdiction, communicating to them but a 
portion of his faculties. He may, more- 
over, at any time revoke his mandate, and 
appoint others to that dignity ; nor is he 
obliged to give any reason for thus acting. 
The chancellor and secretary write the 
acts and documents of the ordinary. The 
notary attests their authenticity. 

The Fathers of Baltimore say : 

" The vicar general represents morally the person 
of the bishop ... he cannot, however, do anything 
except by episcopal delegation." (N. 72. p. 54.) 



7<D SECOND PLENARY COUNCIL 

This, we own, is difficult of understand- 
ing. Kenrick explicitly maintains that the 
vicar general has original jurisdiction in 
the exercise of the ordinary faculties ; the 
Fathers of Baltimore assert that he can do 
nothing except by delegation of the bishop. 
Do we perhaps misunderstand the passage ? 
or is the status of the vicar general in 
this country different from that which is 
laid down in ecclesiastical jurisprudence ? 
Does the vicar general in America receive 
none but delegated faculties, as would any 
other priest to whom the bishop should 
communicate them ? And should this fact 
have escaped the attention of Archbishop 
Kenrick, who makes no distinction between 
the status of a vicar general in America 
and in Europe ? 

When the Fathers of Baltimore, therefore, 
say that the vicar general can do nothing 
except by episcopal delegation, they can 
evidently speak of the episcopal appoint- 
ment only, which designates the incumbent 
of the office of vicar general. This com- 
mission, delegation, or rather appointment, 
is of course necessary to any exercise of 
that office. In this sense we take the 



OF BALTIMORE. 



71 



words of the Fathers of Baltimore. For 
when once appointed, the vicar general no 
longer acts by delegated, but by original 
jurisdiction, save with regard to the exer- 
cise of extraordinary faculties. 



72 SECOND PLENARY COUNCIL 



CHAPTER V. 

Of Ecclesiastical Persons. — Archbishops. 

See Second Plen. C. Bait. tit. iii. cap. i. n. 78 seq. p. 59 : Ken- 
rick, Mor. vol. 2. p. 356. 

78. The term " metropolitan " is derived 
from the Greek M^wwro/Ue, which signifies 
" the mother city." It was applied by the 
Romans to the principal city of a conquered 
district, usually called a province. The 
metropolitan or archbishop, therefore, is the 
chief bishop of a province. 

§ 17. JURISDICTION OF THE METROPOLITAN. 

79. The jurisdiction of the metropoli- 
tan was generally determined and circum- 
scribed by the civil division of the province, 
and was commensurate to its territorial ex- 
tent. By the more modern ecclesiastical 
discipline his authority has been restrained 
within narrower limits. 



OF BALTIMORE. 



73 



1. He may denounce, by letters to the 
Holy See, a comprovincial bishop not re- 
siding in his see, or being absent from 
it beyond the time allotted by the canons. 

2. Every third year he may convoke a 
provincial council. 

3. In cases designated by the law r he 
may supply the negligence of suffragan 
bishops. 

4. He also receives appeals from the 
sentence of his suffragan bishops. 

5. He may have the archiepiscopal cross, 
the emblem of jurisdiction, carried before 
him all over the province, as well as bless 
the people, and wear the pallium. 

All these privileges are summed up by 
jurisprudents, when they teach that juris- 
diction devolves on the archbishop on ap- 
pellation, during visitation, and by devo- 
lution. 

80. When an accused person, believing 
himself unjustly or illegally sentenced by 
the bishop, applies to the metropolitan for 
a revision of sentence, and redress conse- 
quent on a mistaken judgment, this is 
termed " appellation." 

An appeal lies to the archbishop from 



74 SECOND PLENARY COUNCIL 



all censures imposed by the bishop, except 
from such as are inflicted "ex informata con- 
scientia," that is, without any judicial pro- 
ceedings, owing to the delicate nature of 
the offence. It is necessary, however, that 
the bishop should have authentic and per- 
fectly reliable data upon which to base his 
decisions. Hence the phrase " ex infor- 
mata conscientia," that is, " from a well- 
informed conscience/' or, in other words, 
" from correct information." 

The metropolitan, secondly, has juris- 
diction over the province during the visi- 
tation. Formerly he was authorized at all 
times to visit the entire province and ex- 
amine into its condition. Now, this right 
is no longer an ordinary one, and cannot 
be exercised except at the command of the 
supreme pontiff, or by mandate of the 
provincial council. (Kenr. Mor. ii. p. 356.) 

Again, when the suffragan or his chapter 
neglect to do their duty, it becomes the 
right of the metropolitan to take the case 
in hand. Thus it is the metropolitan's 
duty to designate a capitular vicar, should 
the chapter omit doing so eight days after 
the death of the bishop. 



OF BALTIMORE, 



75 



CHAPTER VI. 

Of Bishops. 

See C. Plen. Bait. II. tit. iii. c. ii. p. 62 : Walter, Jus Can. p. 272 : 
Zallwein, Jus Eccl. Publ. § 363 : Soglia, vol. ii. p. 20 . Ben- 
edict XIV. De Synod, Dioc. 1. v. c. vii. : Lingard's Hist, and 
Ant. of Anglo- Sax. Church, vol. i. chap. ii. p. 89 seq. 

81. Some ecclesiastical jurists have ar- 
gued that bishops, being the successors of 
the apostles, inherit all their prerogatives. 
Others, however, more properly distin- 
guish these prerogatives into those of the 
apostolate itself, those of the priesthood, 
and those of the episcopacy, and maintain 
that the privileges of the priesthood and 
episcopacy only pass to the episcopal col- 
lege. 

§ l8. JURISDICTION OF BISHOPS. 

82. The privileges of the apostolate in 
the strict sense of the term, were personal, 
being attached to the apostles as individ- 
uals ; and hence they were incapable of 



76 



SECOND PLENARY COUNCIL 



being transmitted. Such was the right of 
preaching throughout the whole world ; 
as well as of giving the sacraments and 
exercising jurisdiction, without any limit of 
place or country. Bishops do not succeed 
to the apostles as individuals, as, for in- 
stance, to Paul or John or Andrew, but 
rather as composing a body corporate or 
collegiate. (Sogl. vol. i. p. 266.) 

We turn next to the prerogatives of the 
episcopate and priesthood. They comprise 
two things : the power of order, and the 
power of jurisdiction over a particular por- 
tion of the faithful. Now, bishops succeed 
to the entire power of order ; they do not, 
however, inherit the fulness of jurisdiction 
possessed by the apostles, being placed 
by the Holy Ghost to rule " particular " 
Churches. The power of episcopacy in- 
cludes the authority of commanding, judg- 
ing, punishing, dispensing, and administer- 
ing. The first relates to the office of 
preaching, watching over the schools, sem- 
inaries, ceremonies; also the residence of 
the clergy, and visitation of the diocese. 

Again, the bishop can make regulations 
either in or out of synod. Laws enacted 



OF BALTIMORE. 



77 



in synod are of themselves permanent, yet 
not immutable, the successor . having the 
right to abrogate them. (Sogl. vol. i. p. 
287. lib. ii. c. ii.) 

83. Laws made out of synod are also 
deemed by some jurists perpetual ; by the 
greater number, however, but temporary. 

The bishop may prescribe prayers to be 
said either before or after mass ; not, how- 
ever, during mass itself. 

§ 19. ORIGIN OF EPISCOPAL JURISDICTION. 

84. It may further be asked whether 
bishops hold jurisdiction immediately of 
the Pope, and but mediately of God, or vice 
versa. Zallwein (Jus Eccl. Publ. § 363) 
distinguishes as follows: 

(#) Remotely, all ecclesiastical as well 
as civil authority comes directly from God. 

(5) Again, the power of order apper- 
taining to bishops and priests is received 
immediately from God. 

(c) The sovereign pontiff holds juris- 
diction immediately of God ; for the car- 
dinal electors do not confer upon him 
any power, as they themselves are not 



73 



SECOND PLENARY COUNCIL 



possessed of it ; nor can any person be- 
stow what is not in his possession. They 
merely designate the person of the future 
pontiff. 

(d) As the bishop communicates to 
priests a portion of his faculties, so neither 
is it repugnant that the Pope should im- 
part a share of the plenitude of his power 
to bishops. Hence the opinion of those 
who maintain that bishops hold imme- 
diately of the Pope does not seem to in- 
volve any contradiction. (Zallw. 1. c.) 

85. But it may not altogether unrea- 
sonably be objected, what St. Paul said to 
the ancients of the Church of Ephesus, in 
his noble and truly apostolical farewell at 
Miletus : 

" Take heed to yourselves and to all the flock over 
which the Holy Ghost hath placed you bishops to rule 
the church of God, which he hath purchased with his 
own blood." (Acts xx. 28.) 

The Holy Ghost, it will be remarked, 
and not the Pope, is said to place the 
bishops over the Church of God. 

Yet we venture to say that the opinion 
advanced by us, in no sense conflicts with 
the sacred text. 



OF BALTIMORE. 



79 



When a prince grants a manor to Peter, 
with the condition that he should give a 
portion of it to Paul, we should in that 
case say that Peter holds immediately of 
the prince, Paul but mediately. Would 
it be on that account less true that Paul 
received it at the hands of the prince ? 

The same reasoning applies evidently 
to our case. 

86. Again, as Walter (p. 272) observes, 
jurisdiction was bestowed by the Holy 
Ghost, not directly upon each bishop, but 
upon the episcopal college, or body of 
bishops. Now, the Roman pontiff is the 
head of this body corporate : as life and 
activity always stream downward from the 
head into the body, so may episcopal juris- 
diction be said to be derived by bishops 
from the Pope. Yet we must carefully 
guard against an erroneous opinion which 
would make bishops but the vicars of the 
Pope. They possess original, not merely 
delegated authority. 

Whatever opinion we may choose to 
follow, it is certain that bishops are not 
independent princes of the Church ; that 



8o 



SECOND PLENARY COUNCIL 



their power is subordinate to that of the 
Pope. (Tarq. p. 94.) 

The Fathers of Baltimore succinctly 
touch upon the points hitherto set forth. 

87. They pass to another subject. 

" According to the Council of Trent (sess. xxiv. De 
Ref. c. 5), the graver criminal causes against bishops 
are reserved to the Holy See. The minor causes, 
however, are examined and determined upon by the 
provincial council only, or by such as are deputed by 
it. (C. Plen. Bait. II. n. 87. p. 65.) 

In former times, even the most griev- 
ous charges against bishops fell under the 
jurisdiction of the metropolitan or patri- 
arch. 

§ 20. TITULUS MISSIONIS, AND THE OATH I 
PRIESTS CANNOT ENTER A RELIGIOUS OR- 
DER WITHOUT THE PERMISSION OF THE 
ORDINARY. 

88. The Fathers also promulgate some 
excellent decrees of several previous pro- 
vincial councils of Baltimore. The first is 
as follows : 

" As heretofore, by virtue of apostolical indult, secu- 
lar clerics were usually ordained in this country 'titulo 
missionis,' we admonish bishops not to promote any to 



OF BALTIMORE. 



81 



sacred orders, except such as are capable of serving 
on the missions . . . having previously taken an oath 
of perpetually devoting themselves to the mission 
which maybe assigned them." (N. 89. p. 65. See 
Kenr. Mor. i. p. 224.) 

The oath here prescribed is still obliga- 
tory, as the Holy See did not accede to 
the petition of the Fathers of Baltimore of 
dispensing with it for the future, as we 
shall see further on when speaking of 
orders. Every cleric therefore must take 
this oath before being ordained subdeacon. 
The faculty of ordaining " titulo missionis " 
will also be discussed later on. 

89. Another decree reenacted, reads 
thus : 

" The Fathers have thought it opportune to sup- 
plicate the Holy See to issue a declaration for the 
United States of North America, enjoining that ec- 
clesiastics in sacred orders, and ordained titulo mis- 
sionis, as well as all other priests belonging to these 
dioceses, cannot enter a religious institute without the 
written permission of the ordinary." (N. 93. p. 67.) 

In a note subjoined at the bottom of 
page 67, we read : 

" In a letter of his Eminence the Prefect of the 
Propaganda to the Archbishop of Baltimore, written 
on the 23d of October, 1852, among other things, 
6 



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SECOND PLENARY COUNCIL 



this also occurs : ' It is known that not unfrequently, 
priests serving on missions will embrace a religious 
state, whence results no slight detriment to religion, 
arising from the want of priests. It should not be 
overlooked that in the Sixth Council of Baltimore, 
ample provision was made with regard to priests de- 
sirous of entering into a religious community, namely, 
that they should obtain the permission of their ordi- 
nary. As this decree was approved with the rest, it 
should be carefully observed.' " 

It is therefore evident that in America 
no priest can join a religious community 
without the consent of the bishop. 

90. But should this be understood as 
leaving it absolutely in the hands of the 
bishop to grant or refuse permission ? We 
do not think so. 

According to the common law of the 
Church, any secular priest may become a 
religious, even when the ordinary is op- 
posed to it, except when the interests of 
religion demand otherwise. Should it be 
detrimental to souls, no priest could do so, 
even in Europe, without the permission 
of the bishop. (See Note L in Appendix.) 

In this sense, we think the decree of 
the Fathers of Baltimore, as well as the re- 
script of the Propaganda, must be inter- 



OF BALTIMORE. 



83 



preted. This is also indicated in the let- 
ter referred to. (See Bened. XIV. Bullar. 
torn. 2. p. 1 56.) 

§21. SALARY AND PERQUISITES OF PASTORS 
AND ASSISTANTS. 

91. Again, on p. 67, n. 94, we read : 

" Lest a lust of filthy lucre should infect the sacer- 
dotal order, or dissensions arise among priests living 
together on account of the alms freely offered by the 
faithful in the administration of baptism and marriage, 
we admonish bishops to establish in their next synod, 
or otherwise, with the advice of their priests, an 
equitable way of distributing these offerings among 
the priests residing in the same house, also taking 
into consideration the chief claim as well as the 
graver duties of the pastor." (C. Plen. Bait. 1. c.) 

In conformity with this injunction, we 
find in the statutes of the Diocese of New- 
ark, the following rule laid down : 

" In regard to the moneys proceeding from the 
administration of the sacraments (baptism and mar- 
riage), we enjoin that they shall be equally divided 
between the pastor and his assistants, and that all 
shall equally bear the expenses of the house." (Sta 
tuta, cap. iii. § 9.) 

92. The general practice in this diocese 
accordingly is, that, the expenses of the 



84 SECOND PLENARY COUNCIL 

household having been defrayed, the bal- 
ance of the perquisites is equally dis- 
tributed among the officiating clergymen. 

If in some parishes the surplus is not 
thus apportioned it will be simply a viola- 
tion of the statutes, and more or less un- 
just as well as sinful. Nor would it be 
justifiable to apply the surplusage to the 
church or the poor of the congregation. 
The officiating priests are entitled to it, 
and they alone can dispose of it. 

But it may be asked, what is to be done 
when the perquisites do not suffice to de- 
fray the household expenditures ? Should 
the deficiency be filled up from the treas- 
ury of the church, or from the salary of 
the pastor and his assistants ? 

In some parishes, if we are correctly in- 
formed, a deduction is made for that pur- 
pose from the salary of each officiating 
priest. This practice would also seem to 
be in harmony with the letter of the sta- 
tute itself, which enacts that those ex- 
penses must be borne equally by the pastor 
and assistants. 

93. Yet this interpretation presents diffi- 
culties which- are neither few nor easy of 



OF BALTIMORE. 



85 



solution. Would it not, in fact, create 
rather an odious, if not unjust discrimina- 
tion among the assistants of the various 
parishes, some receiving their salary with 
the surplus of perquisites, while others 
would be obliged to give up part even of 
their salary ? 

Again, may not the same difficulties be 
extended to pastors themselves, whose 
perquisites are insufficient to support the 
house? 

With regard to the salary, the Fathers 
of Baltimore again inculcate on the bishops 
and faithful the following decree of former 
councils : 

" Lest priests should be obliged to beg, or suffer 
want, to the disgrace of their sacred dignity, we ad- 
monish bishops to exhort the faithful to furnish a 
becoming livelihood to such as labor in word and 
doctrine." (N. 90. p. 66.) 

The statutes of the Diocese of Newark 
fix the salary of each pastor at one thou- 
sand dollars per annum ; that of the as- 
sistants at six hundred dollars each. (Stat, 
c. iii. § 8. p. 37.) No extra collection is 
allowed them for their support, except 



86 SECOND PLENARY COUNCIL 



when the income of the church is insuffi- 
cient to make up the salary. 

The same statutes direct that a pastor 
absent from his flock on account of ill- 
health, is entitled to half of his salary. 

§ 2 2. CATHEDRATICUM. 

94. " The cathedraticum is a determinate pension 
annually to be given to the bishop for his support, 
and as a mark of honor and submission to the cathe- 
dral church, as being the mother church." (Sogl. vol. 
ii. p. 20.) 

It is usually paid at the synod. But 
formerly, it was not unfrequently given 
during the episcopal visitation. This was 
forbidden by the Council of Trent. (Sess. 
xxiv. c. hi. De Ref.) That council, however, 
did not abolish it altogether, as some have 
maintained, or prohibit its discharge out- 
side the visitation, as is plainly shown by 
Benedict XIV. (De Synod. Dioc. 1. v. c. vii.) 

95. The amount to be given by each 
church should be such as will not be bur- 
densome or oppressive. (C. Trid. 1. c.) 

Benedict XIV. speaks thus : 

" We do not deny that bishops could have com- 



OF BAL TIMORE. 



87 



mitted, or that they did actually commit excesses 
against justice as well as equity or other virtues, by 
demanding more than was allowed by law, or by ex- 
acting it too punctiliously from poor ecclesiastics, thus 
manifesting too great a greed of money, not indeed 
without causing scandal thereby." (De Syn. Dioc. 1. 
v. c. vi.) 

In accordance with universal custom, the 
Fathers of Baltimore say : 

" Finally, as it is but equitable and fair, that all the 
faithful of each diocese should contribute to the sup- 
port of the bishop, who is charged with the care of 
all, the Fathers think, that this matter should be 
discussed in the diocesan synods, where the priests 
that have charge of souls, after mutual consultation, 
should determine on a fixed pension, to be given 
annually to the ordinary, and to be made up from a 
portion of the income of each church." (Cone. Plen. 
Bait. II. n. 100, p. 68.) 

96. From all this we infer : 

1. That the cathedraticum should be 
taken from the treasury of the church, 
not from the salary of the pastor or assist- 
ants. 

2. That it should be moderate. We all 
know but too well how much our congre- 
gations are obliged to struggle in order to 
build up churches, and maintain parochial 



88 



SECOND PLENARY COUNCIL 



schools. This consideration will certainly 
weigh with our ecclesiastical superiors. 

3. The amount of cathedraticum, as well 
as the share falling to the different parishes, 
should be fixed by the priests themselves, 
assembled in synod ; for, as the Fathers 
of Baltimore say : 

" It is but meet that the bishop should ask the opin- 
ion of all his priests, as well as patiently listen to and 
diligently think over it ; so that what is thus ratified 
by all, may obtain greater efficacy, and be more readily 
complied with." (N. 66. p. 51.) 

§ 23. ELECTION OF BISHOPS. 

97. The practice of the Church with re- 
gard to the election of bishops has not 
been always exempt from variation. 

Thus, the Fathers of Baltimore say : 

w The manner of designating such as were to be 
promoted to the episcopal dignity, was not at all times 
uniform. At present, the right of electing bishops is 
deservedly and for most excellent reasons reserved to 
the sovereign pontiff • this discipline has fortunately 
been in vogue already for several centuries. " (C. 
Plen. Bait. II. n. 102. p. 69.) 

The present uniformity in this matter 
was established by the Council of Trent. 



OF BALTIMORE. 



8 9 



98. Let us for a moment scan the his- 
tory of the Church, to follow the different 
phases of this branch of her discipline. 

In the primitive ages of Christianity, 
as St. Cyprian informs us, bishops were 
elected by the priests of a province, as well 
as by the people. The latter were not, 
strictly speaking, possessed of the elective 
franchise. They merely gave testimony 
of the integrity and sanctity of the candi- 
date. See Nat. Alex. sec. L diss. 8; St. 
Cyprian, ep. 68 ; Leo M. ad Rusticum. 
This great pontiff says : 

" There is no reason why those should be con- 
sidered bishops, who are neither chosen by the clergy 
nor acceptable to the people." 

As a general rule, the patriarch or me- 
tropolitan confirmed the election. Then, 
the prerogatives of the primacy were not 
as explicitly defined as they are now. It 
is therefore not strange to find that bishops 
were not unfrequently confirmed without 
any knowledge on the part of the Holy 
See. 

99. Coming down to the sixth century, 
we learn that temporal rulers began to 
intermeddle with these elections, and in 



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SECOND PLENARY COUNCIL 



many instances succeeded so well as to 
make the privilege of electing the bishops 
in their dominions entirely dependent on 
their good will, nay, even inherent in the 
crown. In Spain this prerogative was be- 
stowed upon the king by the bishops them- 
selves in the seventh century. (See Cone. 
Tolet. xii. a. d. 68 i.) In England and 
Germany they had also exclusively arro- 
gated to themselves this elective franchise. 
Nor was the prevalent system of " inves- 
titure " of slight significance in bringing 
about such a state of things. The bish- 
op's ring and crozier were but symbols 
of his spiritual jurisdiction. With the lat- 
ter, however, were not wholly disconnected 
temporal emoluments of the highest kind. 
These alone, it is true, could the king 
confer. Yet custom had made it obliga- 
tory that this earthly power should be 
transmitted to the candidate newly elect 
by investing him with the crozier and ring. 

100. Men began, therefore, soon to look 
upon the latter as the condition of the 
former. Investiture thus became syno- 
nymous with election. The spiritual dig- 
nity was thus made a dependency of the 



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91 



temporal power. Bishoprics were no longer 
conferred on such as were distinguished by 
virtue as well as learning, but on such as 
were servile instruments of despotic rulers. 

Against this abuse, the great pontiff 
Gregory VII. raised his courageous voice. 
It was in consequence abolished in Ger- 
many, in 1 2 13 ; in Spain, in 1208 ; in Eng- 
land, in 1 2 1 5 ; and in France, in the year 
1268. (See Walter, Jus Can. p. 430 seq.) 

The right of election was then restored 
to the chapters of cathedrals. Yet even 
they not unfrequently abused their power, 
which they nevertheless retained during 
the middle ages. They were, however, 
obliged to proceed to an election at least 
three months after the see had become 
vacant. The bishop elect could deliberate 
for one month whether he should accept 
the proffered dignity. And finally he was 
bound to request the pontifical confirma- 
tion within three months after the elec- 
tion. (Walter, 1. c. p. 434.) 

101. Such was the prevailing discipline 
of the middle ages. We turn now to our 
own times. Owing to intestine disagree- 
ments among chapters, as well as external 



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SECOND PLENARY COUNCIL 



dissensions between them and civil rulers, 
the right of election was conferred upon 
the latter in the fifteenth century by papal 
indults and concordats. Thus, up to a 
late period it was exercised by the kings 
of Portugal, Spain, France, Naples, Sicily, 
and Austria. Naturally enough, this con- 
cession was made to none but Catholic 
monarchs, lest it should become subject to 
abuse. In Prussia, therefore, as well as 
Hanover, Holland, and Switzerland, the 
cathedral chapters or the bishops of the 
province remained in possession of this 
prerogative. 

102. Of late, this privilege has been 
a'most universally revoked. Rulers as- 
sumed an attitude hostile to the Church. 
She was compelled in consequence to 
withdraw the trust she had placed in their 
hands. And election became once more 
the right of its original holders, the chap- 
ters. Monarchs, however, still retain a 
considerable influence upon the pontifical 
decision by their remonstrances with the 
Holy See. Such, we believe, is at present 
the established discipline of the European 
continent. 



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93 



In Ireland, we are informed, the nomi- 
nation of bishops is made by the parish 
priests of the respective dioceses, chapters 
not being as yet, in the full sense of the 
term, canonically organized. 

103. In this country, as elsewhere, ec- 
clesiastical discipline on this point has 
been subject to change. Up to the year 
x 833, when the Second Provincial Council 
of Baltimore was held, no less than five 
ways of designating incumbents for vacant 
sees had been made use of. 

1 st. Proprio motu; that is, some one, 
without authority or warrant, suggesting a 
candidate to the Holy See. In this way 
Bishops Concannen, Connolly, Conwell, 
and Kelly were appointed. 

2d. The archbishop and his suffragans 
agreed upon a person for a bishopric situ- 
ated in their province. Such was the pre- 
sentation of Bishop David as coadjutor of 
Bardstown. 

3d. Others had been appointed on the 
presentation of the bishop of the diocese, 
who desired a coadjutor, as in the case of 
Mgr. Blanc, for the See of New Orleans, 
and Mgr. Chabrat, for Kentucky. 



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SECOND PLENARY COUNCIL. 



4th. Some, again, had been presented by 
bishops of other dioceses, without any par- 
ticipation on the part of the metropolitan. 
Thus was Bishop Purcell appointed, at the 
instance of Bishop England ; Bishop Ken- 
rick had written in favor of Rev. John 
Hughes, and the Archbishop, Whitfield, in 
favor of Father Dubuisson. 

5th. Lastly, for the first election in the 
United States, namely, that of Bishop Car- 
roll, the Pope granted to the clergy the 
privilege of nominating the candidate, for 
that occasion only, reserving in future the 
nomination to the Propaganda. (See De 
Courcey and Shea, Cath. Ch. in U. S. p. 
130.) 

104. The Second Provincial Council of 
Baltimore, in its fourth decree, submitted 
to the Holy See the following mode of 
designating bishops: 

1. When a see falls vacant, the suffrages 
of the other bishops of the province are to be 
taken, in order to determine on the priests 
who shall be proposed to the sovereign 
pontiff. This decree was approved by the 
Propaganda, by decree of March 18, 1834. 
(See Cath. Ch. 1. c. p. 34.) 



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95 



2. To this the Propaganda, in 1850, 
added another decree, enjoining that the 
archbishop of the province in which a new 
bishop is to be elected, shall send the 
names of the candidates proposed to all the 
other archbishops, who shall in turn trans- 
mit their opinions to the Holy See. 

3. In 1859, another rescript of the Holy 
See ordained that in the election of an 
archbishop, all the metropolitans should 
be consulted, and cast their vote for candi- 
dates. 

4. This was confirmed in 1861 ; and it 
was enjoined on each bishop every third 
year to send to the Propaganda and the 
metropolitan of the province the names of 
such priests as were deemed worthy of the 
episcopal dignity. 

5. When a see becomes vacant, whether 
episcopal or metropolitan, all the prelates 
whose privilege it is to recommend to the 
sovereign pontiff ecclesiastics for the va- 
cant see, should convene in special synod 
or meeting, in order to discuss the quali- 
fications of the candidates that are pro- 
posed. (Cone. II. PL Bait. p. 73, n. 106.) 

6. To all this, add that not unfrequently 



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SECOND PLENARY COUNCIL 



the priests of the respective dioceses were 
consulted on their choice of a bishop. Thus 
we read, in the life of Archbishop Spalding: 

"One of his last official acts as Bishop of Louis- 
ville, was to assemble his council, that the members, 
as representing the clergy of the diocese, might make 
known their wishes concerning the choice of his suc- 
cessor." (Life, p. 256.) 

105. That the priests of the respective 
dioceses have, from the very beginning of 
Christianity to the present day, been recog- 
nized in the common law of the Church as 
the original and ordinary electors of bish- 
ops, we have shown in our brief historical 
review. It was wrenched from their hands 
and transferred to those of kings or bishops, 
only under extraordinary circumstances. 
When these circumstances had disappeared, 
this privilege returned to the clergy as to 
its proper owners. In their hands it now 
rests throughout the greater part of the 
European continent ; chapters being but 
the representative bodies of the priests. 

106. Xor would it seem less in accord- 
ance with the wish of the Holy See, that 
this right should be exercised by the 
priests in America. Thus, among other 



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97 



instructions addressed by the Holy See 
to the Second Provincial Council of Balti- 
more, the following words occur : 

" The Propaganda has stated that they will not ob- 
ject to grant America election as in Ireland." (Cath. 
Ch., De Courcey, p. 131.) 

Now, if we are correctly informed, in 
Ireland priests elect or nominate bishops. 

107. We shall now define our terms. 

" The word election, in a general sense, applies to 
the presentation, nomination, and confirmation of 
bishops." (Reiff. torn. i. tit. vi. § 1.) 

In a more restricted sense it is defined : 

" A canonical vocation or appointment of a worthy 
person to a vacant see, by such as have the right of 
electing, which is to be confirmed by the Holy See." 
(Reiff. 1. c.) 

As will be seen from this definition, 
election is the act of legitimately designat- 
ing or calling to a vacant see some candi- 
date ; while confirmation consists in the 
act of rendering valid, or ratifying, on the 
part of the Pope, by formal assent, the 
nomination made either by the chapter or 
the Propaganda. 

108. Again, the term election is distin- 
guished from that of nomination. Election 

7 



98 SECOND PLENARY COUNCIL 

properly speaking takes place when the 
chapter casts a majority of votes for " one " 
of the candidates ; while nomination con- 
sists in proposing two or more persons to 
the Pope, that he may select one of them 
for the vacant see. 

The candidate elect of the chapter ac- 
quires a right to the see ; candidates 
merely nominated do not. 

When, therefore, one alone may be pre- 
sented to the Holy See for confirmation, 
it would be " election," strictly speaking ; 
when two or more must be proposed, we 
have " nomination ; " nor does the Pope 
without grave reasons reject all the nom- 
inees. 

109. There is still another special mode 
of election, w T hich consists in the presenta- 
tion of a candidate by way of supplication, 
or affording information of the qualifica- 
tions of persons to be promoted. (Reiff. L 
c.) This of course does not oblige the 
Pope to select any of the persons thus re- 
commended. This seems to be the nature 
of the selection of candidates for vacant 
sees made by bishops in this country. In 
fact, the Propaganda has declared that 



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99 



it does not impose upon the Holy See 
any obligation whatever of appointing any 
one of the proposed candidates. (Deer, 
of June 14, 1834.) And again, the Propa- 
ganda at a later date explains more dis- 
tinctly the character of the nominations 
made by the American prelates. It teaches 
explicitly that the commendation of per- 
sons can only be considered as affording 
information concerning the character of 
the persons proposed. (See Cone. Plen. 
Bait. II. p. 72.) It is, in other words, 
similar to what ecclesiastical jurisprudents 
term " simplex petitio." 

The nomination itself is made by the 
Propaganda, as appears from the rescript 
in the election of Bishop Carroll. 

no. This would seem to be an addi- 
tional argument in favor of allowing the 
clergy a share in this counsel-giving nom- 
ination. Who, as a general rule, know bet- 
ter the faults or the virtues and other good 
qualifications of priests considered worthy 
of promotion, than their fellow-priests ? 

Besides, it would always remain the 
privilege of the bishops of the province to 
accept or reject the choice of the clergy. 



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SECOND PLENARY COUNCIL 



in. In reference to this subject it gives 
us pleasure to quote the following words 
from the Life of Archbishop Spalding : 

" Archbishop Spalding was, as I infer from his cor- 
respondence on this subject, in favor of still further 
modifying this system (of episcopal election by the 
bishops only), so as, in some way, to give the second 
order of the clergy a voice in the presentation of candi- 
dates for episcopal office. He would have given the 
diocesan councillors the right to present a list of names 
to be sent to Rome with that of the bishops. He 
thought that the episcopal council in this country 
should be looked upon as a quasi-chapter, and that 
the giving them a vote would bring us nearer the gen- 
eral discipline of the Church in this matter. Indeed, 
he was in favor of introducing the canonical chapter 
as an element in our Church polity whenever this 
could be done. The Plenary Council does not seem, 
however, to have entered upon the discussion of this 
subject." (Life, etc. p. 312*) 

112. We sum up as follows : 

1. In no case does election by chapter 
or otherwise confer anything but "jus ad 
rem." The Pope, as pastor of the entire 
Church, alone has the right of constituting 
the inferior pastors. 

2. The nomination of episcopal candi- 
dates, as made by the priests of the vacant 
diocese, whether represented in the chap- 



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lOI 



ter or otherwise, has generally been the 
normal and regular mode of election. 

3. Temporal rulers at times obtained 
this privilege. 

4. In this country the presentation of 
candidates does not canonically constitute 
nomination, but must be regarded rather 
as a means of informing the Holy See as 
to worthy persons. 

5. In the opinion of eminent men, and 
also according to the instructions of the 
Holy See, it would be desirable, as well as 
conformable to the general discipline of 
the Church, that the second order of the 
hierarchy, that is, the priests, should have 
a voice in the election of bishops. 

113. We subjoin the following from Lin- 
gard's History, etc. : 

" The election of bishops has frequently been the 
subject of controversy between the civil and eccle- 
siastical authorities. As long as the professors of the 
gospel formed a proscribed but increasing party in 
the heart of the Roman Empire, each private church 
observed without interruption the method established 
by its founder. But after the conversion of Constan- 
tine, when riches and influence were generally at- 
tached to the episcopal dignity, the emperors began 
to view with jealousy the freedom of canonical elec- 
tion ; they assumed the right of nominating to the 



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SECOND PLENA R Y COUNCIL 



vacant sees, and the clergy deemed it expedient to 
submit to a less, rather than to provoke by resistance 
a more dangerous evil." (Ling. Hist, and Antiq. of 
the Anglo-Saxon Church, vol. i. p. 92.) 

114. That in many parts of England the 
right of election was exercised by the 
clergy, Lingard shows as follows : 

" In Northumbria, it appears that the right of 
canonical election was recognized in the clergy of 
each Church." (Ling. Antiq. of the Anglo-Saxon Ch. 
vol. i. p. 92.) 

Again: Alcuin, being prevented by ab- 
sence from taking part in the election of 
an archbishop as the successor of Eanbald, 
who had died in 796, testifies : 

" That up to that day, the clergy of York had ex- 
ercised the right of election, pure from the stain of 
simony, and free from external control." (Ib. p. 92.) 

Of interference in episcopal elections on 
the part of the rulers, Lingard tell us : 

" That the kings (of England) learned to look 
upon bishoprics as benefices, of which the disposal 
belonged to themselves ; that by Canute and his suc- 
cessors the practice of investiture with ring and crozier 
seems to have been introduced. From that period, 
he says, the mitre frequently became the reward of 
intrigue and influence." (Antiq. vol. i. p. 94.) 

115. Of the temporal influence of the 



OF BALTIMORE, 



IO3 



bishops of England, we read : In addition to 
the rank and rights which the bishop held 
in the Church, be also derived high authori- 
ty and important privileges from the State. 
He was by office one of the chief advisers 
of the king, was summoned to the national 
councils ... in some respects the arch- 
bishop enjoyed privileges in common with 
the monarch. . . . He presided in the chief 
courts of justice within his diocese. (Ling. 
ib. 100 seq.) 



SECOND PLENARY COUNCIL 



CHAPTER VII. 

Of Priests having the Care of Souls. 

See Cone. II. Plen. Bait. tit. iii. cap. iv. p. 75 seq. : Kenrick, 
Mor. vol. ii. tract, xii. p. 29 seq. : Walter Kirchenrecht, lib. 
vi. § 252 : Soglia, vol. ii. § 101 : Benedict XIV. cum illud 
1742 : Cone. Trid. sess. xxiv. De Ref. c. xvii. 

116. The Fathers of Baltimore say: 

" As formerly and very appropriately, in the words 
of the Council of Trent, dioceses and parishes were 
distinct, and to each flock special pastors as well as 
inferior rectors were assigned, so that each one should 
have charge of his particular congregation, it would 
therefore be very desirable, that in accordance with this 
custom of the entire Church there should be parish 
priests in the proper sense of the term in these States, 
as in other Catholic countries. Yet our circumstances 
are such as will not at the present conjuncture admit 
of this. It is, however, the sincere desire of the Fathers 
of this Plenary Council, that gradually and as far as 
circumstances will permit, our discipline should in 
this respect conform to that of the entire Church." 
(No. 123, p. 79.) 

This legislation breathes breadth of view 



OF BAL TIMORE. 



and enlightened wisdom. Before enter- 
ing more fully into this question, we shall 
premise a brief historical review. 

§ 24. HISTORY OF PAROCHIAL RIGHTS. 

1 1 7. Up to the third century there was 
but one bishop or rector of each church, 
and but one church in each city. Thither 
all the faithful of that district went to hear 
mass. As churches became more numer- 
ous, consequent on the increase of Catho- 
lics, priests were placed over them, to whom 
were also assigned particular districts. 
Some jurists trace this discipline back to 
the third century (Walter, p. 290) ; others 
make it begin in the fourth. (Sogl. § 23. 
p. 44.) There are those who even go back 
to our Lord, and assert the divine origin 
of parish priests, making them the suc- 
cessors of the seventy-two disciples of 
Christ. In cities where several priests 
were attached to a church, they usually 
formed themselves into a body corporate, 
and led a life in community. 

118. In the ninth century, a peculiar 
abuse became prevalent. Monasteries, as 



106 SECOXD PLEXARY COUNCIL. 

well as secular priests having charge of the 
principal parishes, contrived to obtain con- 
trol of other smaller churches, in such a 
manner as to receive their rich income, 
without, however, actually ministering to 
their spiritual wants. They hired vicars 
or substitutes who did the work for them, 
and to whom they paid but an inconsider- 
able pittance. Not unfrequently they em- 
ployed such priests as would serve at the 
lowest rate, without having the slightest 
regard to their capacity or virtue. (Walt. 
t c. p. 291.) 

1 19. The result may easily be imagined. 
Hirelings and thieves were placed over 
the flock which Christ had purchased by 
his blood. The words of our Saviour were 
fulfilled : 

" All they who came are thieves and robbers, and 
the sheep heard them not." (John x. 8.) 

Again : 

" The thief cometh not, but to steal, and to kill 
and to destroy/' (lb. v. 10. ) " But the hireling, and 
he that is not the shepherd, whose own sheep they are 
not, seeth the wolf coming, and leaveth the sheep and 
flieth: and the wolf snatcheth and scattereth the sheep, 
and the hireling flieth because he is a hireling : and 
he hath no care for the sheep." (John x. 12. 14.) 



OF BALTIMORE. 



I07 



Vigorous measures were adopted against 
this abuse by Pope Urban II. in 1095 \ as 
also by the Synod of Mayence in 1225, 
which thus speaks in its twelfth canon : 

" An exceedingly unlawful custom has prevailed in 
some parts of Germany, contrary to all ecclesias- 
tical law, namely, that hired priests are placed over 
churches in the capacity of temporary substitutes. 
This custom we most severely prohibit. If, however, 
it is necessary that a substitute be employed, his charge 
shall be made permanent." 

120. The Council of Trent (sess. vii. cap. 
ii. vii.) abolished the evil by enjoining that 
" no one, of whatsoever dignity, etc., shall 
presume to accept and to hold at the same 
time several churches ; " that moreover the 
cure of souls shall be conferred on persons 
who can reside on the spot, and exercise 
personally the said cure (1. c. ch. iii.) ; 
that if a vicar be necessary he shall be per- 
petual. (Ch. vii.) 

§ 25. IMMOVABILITY OF PARISH PRIESTS. 

121. The law of the immovableness of 
priests having the care of souls, was en- 
acted, as w T e have just seen, in order to put 



108 SECOND PLENARY COUNCIL 

an end to the corrupt practice of hiring 
temporary substitutes. 

This right of parish priests is thus set 
forth by the Fathers of Trent : 

The Holy Synod enjoins on bishops, that 
for the greater security of the salvation 
of the souls committed to their charge, 
having divided the people into fixed and 
proper parishes, they shall assign to each 
parish its own perpetual " and peculiar 
parish priest, who may know his own pa- 
rishioners." (Sess. xxiv. c. 13. De Ref.) 
The council moreover ordains that " the 
people should be divided into fixed and 
proper parishes." (Ib.) ? 

122. In accord with this is the legisla- 
tion of the Fathers of Baltimore : 

" We wish," they say, " therefore, that throughout all 
these provinces, especially in the larger cities, where 
there are several churches, determinate districts on the 
model of parishes with accurately defined limits, be 
assigned to each church ; and that to its rector paro- 
chial or quasi-parochial rights be given." (N. 124.) 

With regard to the rights of immova- 
bility, the Fathers of Baltimore speak thus : 

" While employing the terms parochial rights, par- 
ish priests, parish, we by no means intend that to the 
rector of any church the right of immovableness should 



OF BALTIMORE, 



be given. We admonish bishops, however, not to use 
their privilege of removing priests except for grave 
reasons. (Ib. 125.) 

123. We quote with pleasure the views 
of Archbishop Spalding, as given in his 
excellent biography : 

" While I would favor the gradual creation of parish 
priests, beginning with the large cities, and legislating 
in that direction also for country districts, according to 
the plan of my venerable predecessor, I should with 
him still maintain their movability "ad judicium epis- 
copi and I should deem it premature and probably 
disastrous in its consequences to adopt ' at once ' 
the full parochial system, for which we are scarcely 
prepared." (Life, p. 312.) 

124. As will be seen, Archbishop Spal- 
ding was in favor of gradually adopting the 
universal discipline of the Church in this 
matter, as laid down by the Council of 
Trent; and deprecated but its sudden and 
full introduction. This view of the matter, 
it would seem, was taken by the Fathers 
of Baltimore, and should apparently com- 
mend itself to an impartial mind. 

But we would rather call attention to 
another point in the following paragraph. 

We may be permitted here to note the 
confidence which Archbishop Spalding 



no 



SECOND PLENARY COUNCIL 



placed in his priests, as also the frankness 
and cordiality with which he treated them.* 
" It gave him (Spalding) real pleasure, 
too, to entertain his priests, and he was 
never better pleased than when surrounded 
by them. His soul was in the work which 
they were doing, and their presence gave 
him an opportunity of talking of that of 
which his breast was full. His government 
was wholly free from anything like espio- 
nage. He would have been as unfit for this 
as he was incapable of it." (Life, p. 270.) 

* It has been said that some bishops of this country were 
not altogether frank or open in their dealings with their clergy ; 
that hospitality seemed to be no part of their household ; that 
pastors were removed on complaints advanced, by the offscour- 
ing of a parish ; that when charges were brought against a 
priest, bishops adopted a system of espionage to discover the 
truth of the allegations made against them, not even informing 
the accused of these imputations, and then either removing or 
suspending the priest without having given him any opportunity 
of self-defence. 

That such a government must be the source of grave injus- 
tice to priests, as well as subversive of all ecclesiastical authority, 
no one, we think, will deny. 

That such a state of things exists, we do not assert ; that it 
may, however, occur, will be seen from the life of the saintly 
prince-priest Demetrius A. Gallitzin. who thought that it was 
scarcely necessary for him to be vicar general of the diocese, 
when so learned and excellent a prelate as Bishop Kenrick would 
take counsel of a hotel-keeper, and suspend a clergyman on 
the charges of that person. 



OF BALTIMORE. 



Ill 



Another trait in Archbishop Spalding's 
character, not less worthy of notice, was 
his fair and practical way of treating ac- 
cusations made against priests. His bi- 
ographer thus describes it: 

When a charge worthy of notice was 
made against a priest, Archbishop Spalding 
never failed to make it known to him ; not 
that he believed him guilty, but that he 
might give him an opportunity of freeing 
himself from an unjust suspicion. When 
the proof of guilt was too strong to ad- 
mit of doubt, he was firm in the course 
which, " after a thorough investigation of 
the case," he thought proper to pursue — 
above all, when there was danger to souls. 

" I did not," he wrote to a clergyman, " attach any 
importance to the charges made against you, of whom, 
from all that I knew, I had a good opinion. Still, I 
thought it due to yourself that you should be informed 
of them. Your explanation is satisfactory, and I 
bid you God speed in your labor, which you should 
continue for the glory of God." (P. 270.) 

§ 26. MANNER OF APPOINTING PARISH 
PRIESTS. EXAMINATIONS. 

125. The Fathers of Baltimore ordain 
that no priest shall be appointed to any 



1 1 2 SECOND PLENA RY CO UNCIL 



parish without having successfully made an 
examination before the bishop and two 
priests selected by him for that purpose. 
They say : 

" In order to follow out the intention of the 
Church, commanding that no one shall be promoted 
to a parochial charge except on having undergone a 
successful examination before the bishop, and three 
examiners appointed in synod, we accordingly direct 
that no one shall be placed over a congregation with- 
out having previously made an examination before 
the bishop and two priests to be designated by him. 
Nor shall any one be admitted to such an examina- 
tion who has not for the space of five years served on 
missions in the diocese in which the parish is situated. 
But if a priest who has not labored for five years on 
missions in the diocese should, nevertheless, receive 
charge of a parish church, he shall be considered but 
the administrator of the parish • nor shall he obtain 
the name as well as rights of a parish priest until the 
five years have elapsed, and he shall have made the 
aforesaid examination." (Cone. Bait. Plen. II. n. 126. 
p. 79, 80.) 

126. This decree contains three things: , 
1 st. All clergymen must stand a special 
examination before being capable of receiv- 
ing charge of a parish. 

2d. They must have labored during five 
years on missions in the diocese, as a con- 



OF BALTIMORE. 



"3 



dition of being admitted to the examina- 
tion. 

3d. If chosen to preside over congrega- 
tions before that term has expired, they 
shall be considered but administrators of 
the parish, and at the end of the above time 
shall be examined as already stated. 

These regulations commend themselves 
to all who have the interest of the clergy 
as well as of the laity at heart. To such 
among the priesthood as are conspicuous for 
learning as well as virtue, they will, if prop- 
erly put in execution, secure a fitting posi- 
tion; for aspirants to holy orders, they will 
serve as a salutary stimulus in the pursuit 
of their studies. And in priests laboring 
on the mission they are no less calculated 
to keep up a love of study by holding out 
to them an equitable recompense. They 
establish a fixed mode of appointing pas- 
tors, thus cutting off wire-pulling on the 
part of the clergy, as well as unfair discrim- 
ination in the superior. 

No doubt, therefore, the bishops who 
made this law will exert themselves strenu- 
ously to have it put into practice. 

127. The Fathers of the Council of 
8 



ii 4 



SECOND PLENARY COUNCIL 



Trent are also quite as explicit in this 
matter. Their words are significative of 
the importance they attached to this ex- 
amination. They say : 

" It is highly expedient, for the salvation of souls, 
that they be governed by worthy and competent parish 
priests. To the end that this may with greater ease 
and effect be accomplished, the Holy Synod ordains 
that when a vacancy occurs in a parish church, where- 
in the bishop has been accustomed to assign the cure 
of souls to one or more (priests), ' all ' of whom, as 
this synod ordains, must be subjected to the examina- 
tion herein prescribed later." . . . (Sess. xxiv. cap. 
xviii. De Ref. ) 

128. The council then enacts that the 
bishops shall within ten days, by public 
notice or otherwise, summon those who 
may wish to be examined. The manner 
of examining is thus set forth : 

" When the time appointed has transpired, all those 
whose names have been entered shall be examined by 
the bishop, or, if he be hindered, by his vicar general 
and by the other examiners, who shall not be fewer 
than three; to whose votes, if they should be equal or 
given to distinct individuals, the bishop or his vicar 
general may add his in favor of whomsoever he shall 
think most fit. The examiners shall swear on the 
Holy Gospels of God, that they will, setting aside every 
human affection, faithfully perform their duty. . . . 



OF BALTIMORE. 



And to none other but to one of those who have been 
examined as aforesaid, and have been approved of by 
the examiners according to the rule prescribed above, 
shall the church be committed. " (lb.) 

129. This decree may be summed up 
thus : No one can receive a parochial cure 
without having been examined by the 
bishop, and three examiners appointed in 
the diocesan synod. All may apply for 
examination. The result shall be deter- 
mined by the votes of the examiners, who 
act under oath. Whomsoever they have 
judged fit by age, morals, learning, pru- 
dence, and other suitable qualifications to 
govern the vacant church, he shall be ap- 
pointed thereto. 

His claim becomes such, that, if set aside, 
he has the right of appealing to the Holy 
See, as Benedict XIV. shows. (De Synod. 
Dioc. lib. xiii. cap ix. n. 18 seq.) 

130. We believe that in some dioceses 
of this country the custom of examining 
semi-annually the junior members of the 
clergy, who have not yet been ordained five 
years, has been introduced. It has been 
said, moreover, that some bishops intended 
to substitute this for the parochial exami- 



1 1 6 SECOND PLENAR Y CO UNCIL 

nations prescribed by the Fathers of Balti- 
more. Though we may be far from con- 
demning semi-annual examinations of the 
younger priests, and though perhaps un- 
able to ascertain correctly the motives of 
our superiors, yet to us it seems that this 
was hardly meant by the Fathers of Balti- 
more. For they state explicitly that the 
parochial examination can be made only 
by such as have already labored five years 
on the mission : moreover, they say that if 
any one should be placed over a congre- 
gation before such time has elapsed, he 
shall be considered but the administrator 
of the parish ; and only at the end of the 
term specified can he be admitted to the 
above examination. 

131. Another reason of no less moment 
seems to favor our view. The examina- 
tion ordained by the Council of Balti- 
more must involve two things : on the part 
of the bishop, an obligation of conferring 
the parish on him who is found most worthy 
and competent ; on the part of the latter, a 
claim in justice as well as equity to the 
appointment. 

Any other supposition would be simply 



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117 



ridiculous ; yet the semi-annual examina- 
tions alluded to above would imply neither ; 
consequently we must hold them to be dis- 
tinct from those that are prescribed by the 
Fathers of Baltimore, as well as alien from 
those of the Council of Trent. 

§ 27. OF ECCLESIASTICAL BENEFICES. 

132. An ecclesiastical benefice is defined 
a perpetual right of receiving certain rev- 
enues from the proceeds of ecclesiastical 
property, on account of the spiritual office 
attached to them, including the sanction 
of the Church. (Sogl. vol. ii. c. ii. p. 146 ; 
Kenr. vol. ii. Mor. tract, xii. vii. p. 29.) 
The chief element of a benefice, however, 
is not the temporal perquisite, but the spir- 
itual duty or office which is annexed to it. 
A more proper definition, therefore, would 
be as follows : 

" A benefice is the right of performing a spiritual 
function ordained by the authority of the Church, to 
which the privilege of receiving a determinate com- 
pensation is perpetually attached." (Sogl. 1. c. ib.) 

Hence these three things are necessary 
to constitute a benefice : 



1 1 8 SECOND PLENARY COUNCIL 



i st. The perpetual right of receiving an 
income. 

2dly. The spiritual office. 

3dly. The ecclesiastical authority. 

133. With regard to the first, the follow- 
ing conditions are necessary : 

1 st. The salary must be fixed, and de- 
rived from immovable chattels, as a gen- 
eral rule. Yet the Holy See has declared 
that the pension given by the French Gov- 
ernment to pastors partakes to a certain 
extent of the character of a benefice. 

2d. It must be perpetual as regards the 
incumbent. His right is for life, unless 
previously forfeited in cases laid down by 
the common law. 

The second constitutive part of a bene- 
fice is the spiritual function. As applied 
to a parochial benefice, it consists in the 
care of souls, the administration of the sac- 
raments, preaching, and various other paro- 
chial duties. 

Finally, the authority of the Church is 
essential. A parish, therefore, not holding 
from the bishop or not recognized as a 
parish by him, or acting in violation of the 
law of the Church, is in no sense an eccle- 
siastical benefice. 



OF BAL TIMORE. 



II 9 



134. Benefices, moreover, are divided 
into such as include the exercise of juris- 
diction — as parishes, for instance — and into 
such as impose but a spiritual office or 
duty void of jurisdiction, as is the recita- 
tion of the breviary. 

Parishes partaking of a benefice can be 
forfeited only for the following crimes : 

1. Heresy. 

2. Confidential simony. 

3. Violently striking a cardinal bishop. 

4. Assassination. 

5. Procuring abortion. 

6. Duel. 

Besides, sacrilege, adultery, fornication, 
perjury, and other notorious crimes can be 
punished with privation of benefice. 

135. The right of immovability of parish 
priests is founded on the permanency of the 
ecclesiastical revenues of a benefice. Yet 
the latter need not essentially consist of 
immovable chattels, though the common 
law of the Church thus prescribes. 

Popes, as we have seen, have declared 
pensions furnished by governments to par- 
take of the nature of ecclesiastical bene- 
fices. It would consequently seem that 



120 



SECOND PLENARY COUNCIL 



the modern discipline of the Church admits 
of greater latitude in this matter. All that 
would appear to be necessary, is that the 
support of the parish priest should be such 
as to guarantee a perpetual livelihood, irre- 
spective of the sources whence it is derived. 
Now, few men will deny that, as a general 
rule, our parishes in America can give a 
permanent living. There is no reason, 
then, why the incumbent or pastor may not 
in like manner become immovable, as far 
as the sustenance is concerned. At least 
we see no valid argument that can be 
urged on this head against the immova- 
bility of parish priests in this country. 

We do not, however, say that other 
reasons of a different kind may not concur 
in making it desirable that this should be 
done gradually, according to the views 
entertained by Archbishop Spalding. 

§ 28. PATRONAGE (jUS PATRONATUS). 

136. Patronage is defined — the right or 
power of presentation to a church or 
ecclesiastical benefice that is vacant. 
(Reiff. lib. iii. tit. xxxviii. § 1. p. 559. vol. 



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121 



iii.) This privilege is acquired only by 
such as have either founded — that is, given 
the ground for building — or endowed a 
church, with the consent of the ordinary. 
(Sogl. I. e.) We say " right of presentation," 
as the patron does not really confer a bene- 
fice. He simply presents an ecclesiastic 
to the bishop, whose duty it is to examine 
the candidate thus presented. If he finds 
him to be fit for the office or parish, he 
should give it to him ; should he be found 
unfit, he should be rejected. 

Patronage, then, does not include the 
right of appointing the pastor, or retaining 
him against the will of the ordinary. Hence 
we see how entirely uncatholic was the 
action of the trustees of St. Mary's Church, 
Philadelphia, and of St. Louis', Buffalo, who, 
holding the title of the church, claimed the 
right of choosing their pastor, or of refusing 
to accept such pastors as were sent by the 
bishop. (See the Catholic Church in U. S., 
De Courcey, pp. 225 and 490.) 

137. Add to this, that, as Kenrick says : 

"If a church is built by collections taken up among 
a number of people, the right of patronage belongs to 
none of them, whether taken singly or collectively. 



122 SE COND PLENA RY CO UNCIL 



Hence the right of patronage does not at all exist in 
the United States." (Kenr. Mor. vol. ii. p. 31. tract 
xii. cap. vii.) 

On the difficulties of St. Louis' Church, 
Buffalo, we quote the following from De 
Courcey and Shea's History of the Cath- 
olic Church : 

" Only one difficulty troubled the administration 
of Bishop Timon, and this arose in the Church of St. 
Louis. The ground for the church had been deeded 
to Bishop Dubois, at the time of his visit to Buffalo in 
1829, by Louis Le Couteulx, Esq. Gradually the 
church had been erected, and a body of trustees or- 
ganized under the general law of the State. To them 
the administration of the church was transferred, the 
bishop having full confidence in their integrity as 
men, and fidelity as Catholics. This hope, however, 
was delusive; ere long they began to usurp powers 
not their own ; and on the issuing of the pastoral 
letter of the Rt. Rev, Bishop Hughes, after the Dio- 
cesan Synod in 1842, the trustees of St. Louis' Church 
peremptorily refused to' submit to the regulations con- 
tained in it. 

" These regulations required every church to act 
under its pastor subject to the ultimate decision of 
the ordinary in the appointment of teachers, sexton, 
organists, choir, and other persons employed in the 
house of God. It also subjected the expenditure of 
the church funds to the supervision of the pastor and 
bishop, and required the accounts to be open to their 
inspection." (P. 490.) 



OF BAL TIMORE. 



123 



CHAPTER VIII. 

Life and Propriety of Conduct of Clerics. 

See Cone. Plen. Bait. II. tit. iii. c. vi. p. 93 seq. : Cone. Trid. 
sess. xxii. ch. i. on Ref. : Walter, Jus Can. 1. v. § 209, 210 : 
Soglia, Jus Eccl. vol. i. 1. iii. § 58, and vol. ii. 1. i. c. viii. 

§ 29. ECCLESIASTICAL DRESS : OBLIGATION OF 
WEARING CASSOCK IN THIS COUNTRY. 

138. "Therefore we desire that they (clerics) 
should observe the law of the Church, wearing the 
cassock at home as well as in church, as being the 
distinctive dress of ecclesiastics." (Cone. Plen. Bait. 
II. n. 148. p. 94.) 

139. The incessant persecutions of the 
first ages rendered any distinction of attire 
impossible. 

As early as the fourth and fifth century, 
however, when peace had been restored 
to the Church, she sought to distinguish 
ecclesiastics from laymen by their outward 
apparel. It was not, however, prior to the 
sixth century that uniformity was reached 



124 



SECOND PLENARY COUNCIL 



in this matter. The form of the clerical 
habit was probably taken from that of the 
monks. At present it consists chiefly of 
the cassock reaching to the ground ; its 
use is prescribed by positive ecclesiastical 
law as well as by custom. 

In Catholic countries this attire is used 
at all times and in all places ; whether in 
the house or outdoors ; at home or abroad. 
A transgression of this custom is punish- 
able with privation of ecclesiastical immu- 
nities. 

140. In America this law does not bind 
in so unlimited a manner. Living among 
non-catholics, clergymen would be con- 
stantly exposed to ridicule and annoyance, 
should they appear in public places vest- 
ed in cassock. Yet nothing hinders them 
from doing so in the house or in church. 

This, in fact, is made obligatory on all 
clerics, as we saw, by the Fathers of Balti- 
more. Nor do we think that their pre- 
scriptions on this point can be set aside 
continually without betraying contempt, 
more or less sinful, for a grave ordinance 
of the Church. 



OF BALTIMORE. 



125 



141. As regards the ecclesiastical attire 
in general, we fear that in this country we 
are drifting in a direction not altogether in 
harmony either with the spirit or the letter 
of ecclesiastical law. We have met priests 
who sought relaxation from their arduous 
duties on sea - shores, or in fashionable 
watering - places, dressed in every other 
conceivable way but that of priests. It 
may not be out of place, therefore, to quote 
the words of the Council of Trent : 

" There is nothing," say the Fathers of Trent, "that 
continually instructs others unto piety and the service 
of God more than the life and example of those who 
have dedicated themselves to the divine ministry. 
For as they are seen to be raised to a higher posi- 
tion above the things of this world, others fix their 
eyes upon them as upon a mirror, and derive from 
them what they are to imitate. Wherefore clerics 
called to have the Lord for their portion, ought by all 
means so to regulate their whole life and conversation 
as that in their dress, comportment, gait, discourse, 
and all things else, nothing appear but what is grave, 
regulated, and replete with religiousness ; avoiding 
even light faults, which in them would be most griev- 
ous ; that so their actions may impress all with ven- 
eration." (Sess. xxii. ch. i. on Ref.) 



126 



SECOND PLENARY COUNCIL 



§ 30. ECCLESIASTICAL IMMUNITIES. 

142. The Fathers of Baltimore touch 
upon another point worthy of notice. 

" Ecclesiastics/' they say, " should not rashly ap- 
ply to profane tribunals, either in relation to business 
or law-suits. Whenever any difficulty arises even with 
a layman, and in regard to temporal affairs, they 
should not implead any one, or voluntarily appear in 
court when impleaded themselves, unless the matter 
cannot be otherwise arranged. Any one, however, 
who should institute a suit before a civil judge against 
a clergyman or religious person, on all matters apper- 
taining to the ecclesiastical court, thereby despises the 
honor of the Church, and violates the sacred canons." 
(No. 155, p. 96.) 

143. The rigor of this law of the Church 
has been somewhat mitigated. At present 
the canons forbid : 

1. That one ecclesiastic should implead 
another ecclesiastic. Hence an ecclesias- 
tic does not incur the censures for suing a 
layman. 

2. The matter in dispute must be of a 
strictly ecclesiastical nature. 

3. The impleading must be rash, that is, 
without being necessitated by any suffi- 
cient reason. 



OF BALTIMORE. 



127 



Accordingly, cases may occur when one 
ecclesiastic could implead another eccle- 
siastic, even in ecclesiastical matters to a 
certain extent, without incurring the cen- 
sures. 

144. On this matter we shall speak more 
fully hereafter. At present a few words will 
suffice to explain the nature of the exemp- 
tion of clergymen from lay jurisdiction. 

Bellarmin says : 

" Ecclesiastics are not exempted from the civil law, 
as far as this is consistent with the sacred canons. 
For/' as he observes, " they are also citizens. How- 
ever, they cannot be punished even for civil offences 
by a lay judge." (Bellarm. De Cleric, lib. i. c. 28.) 

This exemption is called " privilegium 
fori." 

" Natalis Alexander (Hist. Eccl. sec. xv. cap. vii.) 
contends that this privilege, as applied to civil cases, 
is not of divine right : other authors, however, main- 
tain the contrary. Practically speaking, the Church 
claims that all causes of ecclesiastics, whether civil 
or ecclesiastical, pertain to her tribunal. Clergymen, 
however, may appear in a secular court when they must 
implead a lay person, or are themselves impleaded 
by him." (Kenr. Mor. vol. ii. p. 347.) 

145. An ecclesiastic who is cited before 
a lay-tribunal as a witness in a civil or 



128 SECOND PLENARY COUNCIL 



criminal cause, cannot appear without hav- 
ing previously obtained in writing permis- 
sion from his bishop or superior to do so. 

146. The next privilege is termed " priv- 
ilegium canonis," so named from the 1 5th 
canon of the Second Council of the Late- 
ran, which runs thus : 

" If any one by diabolical instigation, . . . should 
lay violent hands on an ecclesiastic, let him be ex- 
communicated." 

The violence here mentioned includes, 
besides striking, any other injurious ex- 
ternal action, provided it be serious, such 
as gravely insulting language. 

From this censure all those are exempted, 

1. Who are invincibly ignorant of the 
law and the censure annexed to it. 

2. Those who act in self-defence. 

3. Those who strike in a jocular manner. 

4. Those who inflict such an injury on 
the sudden impulse of anger, without any 
premeditation. 

By ecclesiastics are here meant all those 
who have received the tonsure. This pri- 
vilege extends also to monks and nuns. 

147. The Fathers of Baltimore finish this 
chapter by earnestly admonishing clerics 



OF BALTIMORE, 



I29 



to flee idleness ; to devote themselves to 
the study of theology, canon law, liturgy, 
and ecclesiastical literature. To this ex- 
cellent monition, we venture to add but one 
suggestion, namely : that the distribution 
of parishes and ecclesiastical positions be 
of such a nature as will of itself be the 
most potent incentive to study. 
9 



I30 SECOND PLENARY COUNCIL 



CHAPTER IX. 

On Ecclesiastical Seminaries. 

See Cone. Plen. Bait. II. tit. iii. ch. vii. p. 105 seq. : Aug. Thei- 
ner, Geschichte der Geistlichen Bildtingsanstalten, 1835 : 
Walter, Jus Can. lib. v. c. i. De Educat. Cleric. § 196 : Cone. 
Trid. sess. xxiii. c. 18. De Ref. ; Soglia, lib. ii. c. ii. § 130. 

§ 31. HISTORY OF ECCLESIASTICAL 
SEMINARIES. 

148. From the very beginning of Chris- 
tianity, bishops were solicitous about the 
training of ecclesiastics for the sacred min- 
istry. No fixed and permanent mode could 
be adopted in this matter during the first 
centuries of bloody persecution. 

However, as soon as peace was restored 
to the Church, bishops set apart special 
houses, generally contiguous to their own, 
where such as aspired to the priesthood 
were brought up and prepared for the altar. 
Thus do we read, in Socrates' Hist. lib. i. 
c. ii. : 

"Alexander, Bishop of Alexandria, ordains that 



OF BALTIMORE, 



boys should be educated for the Church : out of'their 
midst, he selected Athanasius, who, having become 
of age, was also ordained deacon by him." 

Moreover, all monasteries contained 
schools of learning ; and monks made it 
their chief task to prepare youths for 
the Church. Where episcopal seminaries 
were wanting, their place was supplied by 
the schools of these monasteries. 

149. It was customary also that priests 
should themselves instruct others, thus 
preparing for themselves fit and worthy 
successors. Hence the following decree : 

" Resolved that all priests, who are placed over 
parishes, should, according to the custom prevailing 
throughout Italy, ... as good fathers, teach the ju- 
nior students to read the Psalms, to attend to spiritual 
exercises and to the study of the law of the Lord, so 
as to provide worthy successors for themselves. (See 
Cone. Vassion. II. a. d. 529.) 

Yet all these aspirants to the priesthood 
were obliged to spend some time preced- 
ing ordination, under the immediate super- 
vision of the bishop. 

150. When, in the sixth century, chap- 
ters came into existence, the instruction 
of these young men devolved upon them, 



132 



SECOND PLENARY COUNCIL 



and a more uniform mode of training was 
established. 

Regular seminaries were now instituted; 
and their direction confided to these chap- 
ters. In them, a special office was created, 
that of theologian, or professor of theol- 
ogy, whose duty it was to superintend the 
studies of these seminaries. 

151. This continued to the end of the 
twelfth century, when abuses of a serious 
nature became prevalent, and caused sem- 
inaries to fall into decay. The office of 
theologian, or the professorship, which 
seems to have been a lucrative position, 
was frequently left vacant by chapters, and 
its rich income divided among the rest of 
the canons. 

Universities, in the principal European 
cities, became the centres of learning ; they 
became the schools of training young men 
even for the ecclesiastical state. They 
were endowed in the most liberal manner 
by kings and bishops. From them issued 
the greatest literary men of the middle 
ages — a Scotus, St. Thomas Aquinas, St. 
Bonaventure, Albert the Great, and a host 
of others. 



OF BALTIMORE. 



133 



These again, in turn, occupied the prin- 
cipal chairs and professorships in those 
seats of learning. 

152. But in their turn, the universities 
also degenerated. Learning became syn- 
onymous with pedantry ; immorality ap- 
peared there in its worst forms. 

Hence the Sacred Council of Trent, dur- 
ing its sessions in 1 563, rightly judging that 
ecclesiastics could no longer be educated 
with safety in universities, reestablished the 
old episcopal seminaries, placing them un- 
der the direct supervision of bishops, and 
laying down restrictions against the recur- 
rence of former abuses. 

153. The first seminary of this period, 
was established by St. Ignatius Loyola, for 
the Germans at Rome, in 1552. It contin- 
ues to flourish even at the present day, 
under the excellent fathers of the Society 
of Jesus. When this Society was abol- 
ished, seminaries became extinct in many 
parts of Germany. Ecclesiastical students 
were thus compelled to frequent universi- 
ties, where chairs of theology and philoso- 
phy existed. This is at present, to a great 
extent, the condition of affairs in Germany. 



134 SE COND PLENAR Y CO UNCTL 

Bishops, however, possess in these uni- 
versities a certain right of superintending 
theological studies, and preventing errors 
from being taught. 

1 54. Nor does it seem, on the other hand, 
altogether incongruous that the civil author- 
ity should also have some part in the ar- 
rangement of the plan of studies, and in 
the general superintendence, provided this 
does not conflict with the laws of the 
Church. 

However, candidates for the priesthood 
are obliged to remain some time in the 
episcopal seminary before ordination. 

§ 32. INTERNAL ADMINISTRATION OF SEMI- 
NARIES : PUBLIC EXAMINATION. PRO- 
VINCIAL SEMINARIES PREFERABLE TO 
DIOCESAN SEMINARIES IN THE UNITED 
STATES. 

155. As regards the internal administra- 
tion of seminaries, the Council of Trent 
enacts : 

1. That all cathedral churches should 
support and train up in the ecclesiastical 
sciences a certain number of candidates in 
colleges to be erected near such churches. 



OF BALTIMORE. 



135 



2. None should be received under the 
age of twelve years. 

3. The children of the poor should be 
chiefly selected: those of the rich, how- 
ever, should not be excluded, provided 
they consent to defray their expenses. 

4. All churches, without exception, shall 
contribute to the support of these semi- 
naries. 

"The bishop," say the Fathers of Trent, "shall 
take a certain part or portion out of the entire fruits 
... of all dignities whatsoever, . . . abbeys, priories, 
of whatsoever order, even though regular, . . . and 
of all benefices whatsoever, even those belonging to 
regulars, . . . even those of other colleges ; — in which, 
however, there are not actually seminaries of scholars 
or of teachers for promoting the common good of the 
Church ; for the Synod wills that those places be 
exempted, except in regard of such revenues as may 
remain over and above the suitable support of the 
said seminaries. ,, (Sess. xxiii. c. 18.) 

All parochial churches in this country, 
therefore, whether in charge of secular or 
regular priests, should contribute to the 
support of seminaries. Only such colleges 
and institutions do not fall under this ob- 
ligation as themselves actually train up 
young men for the priesthood. Priests, 



1 36 SECOND PLENAR Y CO UNCIL 

therefore, of a religious order having charge 
of parishes, but not educating clerical stu- 
dents, are not exempted from this duty 
of supporting seminaries : custom, how- 
ever, may exempt them in some parts. 

5. The administration of the seminary 
shall be conducted by the bishop, who 
shall have full control and jurisdiction in 
the premises. He shall select two of the 
older priests to assist him with regard to dis- 
ciplinary matters. He shall also associate 
with himself, in the administration of tempo- 
ral concerns, two canons ; one to be select- 
ed by himself, the other by the chapter. 

From the rest of the clergy, two shall be 
chosen to aid in the management of tem- 
poral matters ; one of them to be appointed 
by the bishop, the other by the clergy. 
(Cone. Trid. sess. xxiii. c. 18.) 

A more prudent rule could scarcely 
have been laid down by the Fathers of 
Trent. By associating with themselves 
representatives from the entire clergy in 
the administration of seminaries, bishops 
will cause them to take more interest in 
seminaries, as also to contribute more 
cheerfully to their support. 



OF BALTIMORE. 



137 



156. " The examination of seminarians should be 
conducted by examiners to be nominated in diocesan 
synods, or meetings of the clergy." (Cone. Plen. Bait. 
II. p. 57.) 

This paragraph or decree evidently im- 
plies public examinations. They would, in 
fact, seem admirably fitted to promote an 
honorable emulation among seminarians. 
They are customary in European semi- 
naries. We are glad to see the system of 
public examinations adopted by the learned 
rector of Mount St. Mary's of the West, 
the well-known theological seminary of the 
archdiocese of Cincinnati. It is but lately 
that we saw in the Cincinnati papers a pub- 
lic notice of the examinations to be held 
in the above seminary : a schedule also of 
the matter for examination and a list of 
the text-books employed by the students 
were added, and an invitation was extended 
to the priests of the city and vicinity to 
assist at the examinations. 

157. Many of our small diocesan semina- 
ries, it is but too true, could not very well 
suffer the light of day to shine upon their 
examinations ; they are but poorly supplied 
with competent professors, their means 



SECOND PLENARY COUNCIL 



being insufficient to enable them to provide 
for all the requirements belonging to a well- 
constituted seminary. 

It has, moreover, only too often happen- 
ed that the professors of these small semi- 
naries were, as the Fathers of Baltimore 
term them, " sacerdotes vagabundi," wan- 
dering from diocese to diocese, and who 
began to teach theology as a last resort, 
when all else had failed. 

Hence the position of a professor of 
theology was looked upon by the rest of 
the clergy with mingled feelings of commi- 
seration and contempt. Yet all this cannot 
be attributed to any personal fault on the 
part of the various rectors of such institu- 
tions. The chief mistake lies perhaps in 
a strange misapprehension of the proper 
status due to a professor of theology. 

158. The discipline will naturally suffer 
also under these circumstances. All these 
defects are easily remedied in provincial 
seminaries, where a good staff of professors 
can be engaged, and discipline properly 
enforced. 

As, therefore, in many parts, means are 
wanting to maintain diocesan seminaries, 



OF BALTIMORE. 



1 39 



provincial seminaries as ordered by the 
Council of Trent and recommended by the 
American prelates would seem, to be of all 
others best calculated to train candidates 
for the priesthood in this country. 

We do not deny that exceptions to this 
rule occur not unfrequently. 

159. We finish by citing some of the 
enactments of the Council of Trent : 

" Whereas the age of youth, unless it be rightly 
trained, is prone to follow the pleasures of the world ; 
and unless it be formed, from its tender years, unto 
piety and religion, ... it never will perfectly perse- 
vere in ecclesiastical discipline ; the Holy Synod 
ordains that all cathedral, metropolitan, and other 
churches greater than these, shall be bound to edu- 
cate religiously and to train in ecclesiastical discipline 
a certain number of youths." (Sess. xxiii. ch. xviii. on 
Ref.) 

160. Again the Fathers of Trent say: 

" Into this college shall be received such as are at 
least twelve years old, and whose character and incli- 
nation afford a hope that they will always serve in the 
ecclesiastical ministry. They shall be instructed in 
sacred Scriptures ; ecclesiastical works ; the homilies 
of the saints ; the manner of administering the sacra- 
ments, especially those things which shall seem adapt- 
ed to enable them to hear confessions ; and the forms 
of the rites and ceremonies." (Ib.) 



140 



SECOND PLENA R Y CO UNCIL 



"They shall always wear the clerical dress." (Ib.) 

161. In the same place, the Council of 
Trent continues thus : 

" The bishops as aforesaid, with the advice of two 
of the chapter, of whom one shall be chosen by the 
bishop, and the other by the chapter itself, and also 
of two of the clergy of the city, the election of one of 
whom shall in like manner be with the bishop, and 
of the other with the clergy — shall take a certain part 
out of the entire fruits of the episcopal revenue." 
(Sess. xxiii. ch. xviii.) 

We will subjoin from Lingard an histor- 
ical outline of the origin of seminaries in 
England : 

" As the first district churches," says Lingard, 
" were built on the domains of the great cathedral 
and monastic establishments, there can be no doubt 
that they were served by clergymen from the same 
bodies. 

" Priests were supplied from three sources : 
" i. The parish minsters themselves appear to have 
furnished many candidates for the priesthood ; for the 
clerks belonging to these minsters were compelled to 
apply to learning, and the mass priests were enjoined 
to superintend their religious studies. 

" 2. We meet with many instances of clergymen 
who had been educated from their childhood in the 
schools of monasterial establishments, and were after- 
ward drawn thence to undertake the care of parochial 
churches. 



OF BALTIMORE. 



141 



3. " But the chief resource of the bishop lay in the 
cathedral monastery, where the clergy were carefully 
instructed in the duties and trained in the exercise 
of their holy profession. They were distinguished 
by the name of canons, because the rule, which they 
observed, had been framed in accordance with the 
canons. These communities formed the principal 
seminaries for the education of the clergy." (Lingard, 
Hist, and Antiq. of the Anglo-Sax. Ch. vol. i. p. 163.) 



142 



SECOND PLENARY COUNCIL 



CHAPTER X. 

On Holding Ecclesiastical Property. 

See Cone. Plen. Bait. II. tit. iv. cap. unic. p. in. seq. : Walter, 
Jus Can. lib. vi. cap. i. § 240-246 : Cone. Trid. sess. xxii. c 
11. De Ref. 

§ 33. TRUSTEEISM \ RIGHT OF CHURCH 
PROPERTY AS RECOGNIZED BY CIVIL 
LAW IN AMERICA. 

162. The Council of Baltimore, in order 
to restrain undue interference of trustees, 
repeat and inculcate again the former de- 
crees of councils held in this country. 
They may be summed up as follows : 

1. No church shall be dedicated until 
the deed has been given to the bishop. 

2. No right of patronage exists in this 
country, as the churches are not built ex- 
cept by voluntary gifts or alms taken up by 
collections. 

3. All bishops should endeavor to ren- 
der ecclesiastical property safe, by invoking, 



OF BALTIMORE, 



143 



where it can be done, the aid of civil laws. 
If this cannot be done, they should make a 
testament, constituting one of the other 
bishops in this country their heir, who will 
deliver the property to the successor : this 
latter condition, however, is not to be ex- 
pressly stated in the will itself. 

4. Superiors of monasteries should also 
make a testament, sending a duplicate to 
the bishop, if they have not been incor- 
porated. 

5. As the civil tribunals in practice 
scarcely ever recognize the laws of the 
Church, bishops, in order to shield them- 
selves against any undue interference of 
these lay tribunals, and protect church 
property, are obliged to assume the fullest 
administration of ecclesiastical property. 

6. That lay trustees have no inherent 
right to administer church property, or call 
and dismiss pastors at will. (C. Plen. Bait. 
II. 1. c. p. 11 1-120.) 

163. The necessity of some of these 
regulations has been denied by some cele- 
brated writers, who contend that the com- 
mon law prevailing also in this country, 
fully recognizes the laws of the Catholic 



144 SECOND PLENARY COUNCIL 

Church in regard to holding ecclesiastical 
property. We venture, however, with all de- 
ference, to suggest that these writers missed 
the thesis of the Fathers of Baltimore. 

They explicitly maintain that in these 
United States all citizens have the right 
of freely practising their religion — that this 
right is recognized by the civil laws. That 
therefore c< the laws of the Church regard- 
ing ecclesiastical property should be ob- 
served." (C. Bait. p. 117, no. 199.) 

This evidently can only mean, as the 
illustrious writers already mentioned ex- 
press it, that the common law even in 
this country acknowledges and enforces 
the laws of the Church in this matter. 

164. But the bishops add, and herein 
lies the main point at issue, that in practice 
civil tribunals scarcely ever carry out the 
provisions of this common law, and there- 
fore it would not be prudent to allow ec- 
clesiastical property to remain exposed to 
the whim of a judge. The civil tribunals 
vary in their decisions in this matter, and 
hence cannot afford perfect security. 

This, we think, is the thesis of the 
Fathers of Baltimore, and it seems to be 



OF BAL TIMORE. I4 j 

borne out by the frequent practice of 
courts, as the writers referred to themselves 
admit. 

§ 34. HISTORY OF ECCLESIASTICAL PROPERTY. 

165. Before entering upon the nature of 
the administration of Church property, we 
shall premise a few words on its history. 
Then we shall add something on the pro- 
perty of secular ecclesiastics, and that of 
regulars of both sexes. 

In the first three centuries, divine service 
was maintained and the sacred ministers 
were supported by the offerings of the 
faithful. These were administered by the 
bishop, and divided into three parts : the 
first for the support of the clergy; the 
second for the poor ; the third for the 
divine service. 

166. Gradually, however, the various 
parishes acquired real property, and each 
church or congregation held possessions as 
a corporate body. This is seen from the 
edict of Licinius, in 313, cited by Lactantius, 
De Mort. Persecut. 48, which reads thus : 

" And as these same Christians are known to pos- 
10 



I46 SECO ND PLENA R Y CO UNCIL. 

sess not only those places where they meet, but also 
others, holding them in the name of the entire body, 
that is of the churches, not of the single members, you 
will command their property to be restored to these 
same Christians, that is to their entire body and com- 
munity." 

167. Each church therefore formed a 
corporation, and had possessions in its 
own name. From the sixth to the eleventh 
century (535-1094), lay people and kings 
often seized upon church property and 
lands ; and not unfrequently the eccle- 
siastical authorities themselves would give 
them to princes. This alienation was se- 
verely prohibited. And this prohibition 
still exists. At the Peace of Westphalia, 
in 1648, the goods of the Church, that had 
been grasped by some Protestant princes, 
were allowed to remain in possession of 
them, for the sake of avoiding greater evil. 

In France, during the Revolution of 1789, 
all Church property was confiscated, but 
was partly restored by the Concordat in 
1802. 

In Russia, England, and lately in Italy, 
the Church has been despoiled under the 
semblance of law, and her most flourishing 



OF BALTIMORE. 147 

establishments, both of art and science, 
have been taken away and declared na- 
tional property. The injustice of these 
measures we shall demonstrate a little fur- 
ther on. 

1 68. We pass to the nature and right 
of property in the Church. 

The right of property is generally de- 
fined " the legitimate faculty or power of 
disposing of any thing as one's own." 
This, again, may be perfect or imperfect. 
The former means the power of disposing 
both of the thing itself as well as of its use: 
the latter refers to either one or the other 
of the two only. 

Man alone can have the right of proper- 
ty, as only a rational being can dispose of 
property or is capable of appropriating it 
to himself. 

169. It may, therefore, not unreasonably 
be asked by what right do churches, mon- 
asteries, or religious bodies in general, hold 
property? Surely the church or monaste- 
ry itself is not gifted with intelligence. 

We answer, no church or monastery has 
property, strictly speaking, as an inanimate 
body, but as the representative of a com- 



I48 SECOND PLENARY COUNCIL 

munity of rational beings, who are its 
members. As such, these institutions are 
considered "moral persons." 

1 70. According to the law of England, 
bishops, parsons, and vicars constitute cor- 
porations sole ; as such, they acquire the 
following rights : 

1st. Perpetual succession. 

2d. To sue or be sued, implead or be 
impleaded, grant or receive, by their cor- 
porate name. 

3d. To purchase lands and hold them. 

All churches, therefore, and congrega- 
tions, in England, constitute corporations. 
These exist as corporations by virtue of 
the common law, which, according to Black- 
stone, "is nothing else but custom arising 
from the universal agreement of the whole 
community." (Blackst. bk. i. ch. 18.) 

171. It has, as we have seen, but recently 
been asserted by distinguished American 
writers, that the common law of England 
in this respect obtains also in the United 
States ; that therefore all bishops and pas- 
tors, churches, congregations, monasteries, 
and religious establishments constitute cor- 
porations, without standing in need of any 
particular charter. 



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149 



The writers, if we mistake not, based their 
inference on a decision rendered by the 
Supreme Court in the case of Father 
Stack and Bishop O'Hara, where the Su- 
preme Court on appeal recognized the laws 
of the Church, and decided accordingly. 

This is true to a certain extent, yet we 
venture to say that the common law is 
not so universally carried out as to afford 
security for church property ; nor is it 
such as will practically be of much benefit. 
Churches and congregations are compelled 
to become incorporated if they wish to 
enjoy the privileges of corporate bodies. 
The common law, as it exists here, is of 
little practical moment. 

172. Hence we fully agree with the 
Fathers of Baltimore when they say : 

"That the laws of the church, ought to be recog- 
nized and carried into effect by the civil power. But 
unfortunately they are not." (P. 117.) 

The law of the Church is plain. She is 
a perfect and supreme society. Hence she 
has the right of property, which is neces- 
sary to maintain divine worship and sup- 
port her ministers. This right she claims 



150 



SECOND PLENARY COUNCIL 



by divine institution. Now, if she has a 
right of property as a society, it is appa- 
rent that its administration belongs to her 
rulers : in other words, the Pope and bish- 
ops are the administrators of all church 
property. 

Hence laymen have no right of property 
in the church. Therefore the absurdity 
of trustees claiming the deed of a church, 
or the right of disposing of its revenues, is 
apparent, as being contrary to the law of 
God as well as of the Church. 

If the Church, therefore, allows laymen 
to assist in administering church property, 
it is only by concession, not by any right, 
that she does so. 

173. We subjoin, by way of explanation, 
from Blackstone, some remarks on the 
foundation of the right of dominion or 
property : 

" All dominion over external objects, over the earth 
and the things therein, has its original from the gift 
of the Creator to mankind in general. While the 
fearth continued bare of inhabitants, it is reasonable to 
suppose that all was in common among them ; and 
that every one took from the public stock what he 
stood in need of to his own use. But when mankind 
increased in number, craft, and ambition, it became 



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151 



necessary to appropriate to individuals, not the use 
only, but the very substance of real or immovable pos- 
sessions ; otherwise innumerable tumults must have 
arisen, and the good order of the world must have 
been perpetually broken in upon. 

" The only question remaining, is 6 how ' property 
in land first became actually vested ; and as occu- 
pancy gave right to the temporary use of the soil, so it 
is agreed on all hands that it originally gave the right 
also to a permanent property in the substance of the 
earth itself." (Blackst. bk. ii. ch. i.) 

§35. ADMINISTRATORS MUST ANNUALLY REN- 
DER AN ACCOUNT TO THE ORDINARY. 

174. The Council of Trent has wisely- 
enacted that parish priests and all others 
intrusted with the administration of church 
property, shall annually render an account 
of their acts in this regard. Its decree is 
as follows : 

"The administrators, whether ecclesiastical or lay, 
of the fabric of any church whatsoever, even though 
it be a cathedral, as also of any hospital, confra- 
ternity, charitable institution called Mont de Piete, 
and of any pious places whatsoever, shall be bound 
to give in once a year an account of their administra- 
tion to the ordinary." 



No exception whatever is therefore 



1 5 2 SECOND PLENAR Y CO UNCIL 

admissible to this law. It applies equally 
to all property of religious of both sexes — 
to houses of the Sisters of Charity in this 
country, as well as all other religious com- 
munities. Even where a privilege to the 
contrary exists, the ordinary shall also be 
employed jointly with those whose duty it 
is to examine the accounts. 

175. In accordance with this injunction, 
the bishops of the United States, for the 
greater part, have prescribed that every 
pastor being the administrator of the 
church funds should give an accurate 
financial statement of his parish once a 
year. That this ordinance, when properly 
complied with, will redound to the good of 
the congregation as well as the pastor, few, 
we think, will gainsay. That it will prevent 
serious financial embarrassments is no less 
proven by experience. Yet it has been 
said that in this country church property 
does not fall under this rule, at least not in 
the strict sense of the term ; that here 
priests or pastors are obliged to collect 
church funds with no ordinary effort, and 
frequently with no slight degree of annoy- 
ance, while in old Catholic lands quite the 



OF BALTIMORE. 



153 



reverse is the case, ecclesiastical posses- 
sions being there already well established 
and of themselves bearing interest ; that 
the Council of Trent could have had in 
view only such property, demanding of its 
administrators an annual account ; that 
therefore this law does not hold in this 
country, or at least applies not with the 
same rigor as elsewhere. 

Nor would these objections seem to be 
altogether groundless : certain it is that the 
Fathers of Trent had in mind a state of 
things entirely different from ours. 

Though, in consequence, this annual ac- 
count seems not to be binding with us by 
virtue of the law of Trent, yet it would ap- 
pear that, from the analogy of the cases, 
bishops may demand annually a financial 
statement of each pastor. 

§ 36. MODE OF SECURING ECCLESIASTICAL 
PROPERTY IN THE DIOCESE OF NEWARK. 

176. The mode of securing ecclesiastical 
property in the Diocese of Newark is con- 
tained in the Act for the Incorporation of 
Catholic Churches, State of New Jersey, 



IJ4 SE COND PLENA RY CO UNCIL 

approved February 17th, 1864. Its main 
features are : 

1 st. Any Roman Catholic church or 
congregation may be incorporated accord- 
ing to the provisions of this act. 

2d. The bishop, as well as the vicar gen- 
eral of such diocese, and the pastor of such 
congregation, or a majority of them, may 
select two lay members of such congrega- 
tion, thus constituting a board of trustees. 

As will be seen from this enactment, the 
majority will always be on the side of 
the clerical members of the board. This 
is but consonant to the law of the Church, 
which recognizes no right of administering 
church property inherent in laymen, or lay 
trustees. 

3d. The bishop, vicar general, and the 
respective pastors, and their successors, are, 
by virtue of their office, trustees of all con- 
gregations ; the lay members hold their 
office for one year only, when the old ones 
may be reappointed or new ones selected. 

177. No election of lay trustees, as is evi- 
dent, can take place, according to the Act 
for the Incorporation of Churches; such 
trustees being simply chosen by the ec- 



OF BALTIMORE. 



iS5 



clesiastical superiors. (See Statuta Nov. 
Dioc. p. 80-90.) 

178. We have been told that, in some 
churches, the people were called together 
by the pastors in order to ballot for the two 
lay members of the board. 

This evidently cannot be considered an 
election in the strict sense of the term ; but 
rather a means of finding out which of the 
laymen of the parish are acceptable to the 
congregation in the capacity of trustees. 
Nor would such voting be opposed to the 
act of incorporation. Yet is it nevertheless 
fraught with danger. The people, thus 
convened, would but too probably claim the 
right of election in the strict sense of the 
term ; and should their choice be disre- 
garded, serious consequences might follow 
from it. 

179. A congregation becomes incorpo- 
rated in the following simple manner : All 
the members of the board of trustees shall 
sign a certificate, setting forth the name 
by which they and their successors shall 
be known and distinguished as a body cor- 
porate, and transmit the said certificate to 
the clerk of the Court of Common Pleas 



SECOND PLENARY COUNCIL 



of the county in which such church is lo- 
cated, whose duty it shall be forthwith to file 
and record the same ; and thereupon such 
church or congregation shall be a body 
corporate, by the name or title so taken, 
certified, and recorded. (Act of Incorpora- 
tion.) 



OF BALTIMORE. 



157 



CHAPTER XI. 

Private Property of Ecclesiastics. 

See Cone. Plen. Bait. II. tit. iii. c. vi. no. 157. p. 97 ; Soglia, vol. 
ii. §119: Kenrick, vol. i. tract, x. § 3. p. 300, Moral.: 
Walter, Jus-Can. § 257-259. p. 504. 

§37. VARIOUS KINDS OF PROPERTY WHICH 
CLERGYMEN MAY HOLD IN THEIR OWN 
NAME. 

180. The Fathers, renewing the precepts 
of the canons, declare that ecclesiastics 
should not carry on trade in property or 
money; nor pursue mercantile speculations, 
etc. (P. 97. n. 157.) 

Neither should they receive money on 
deposit, except by the written permission 
of the bishop. This is complied with by 
sending a written list of deposits to the 
bishop at the end of the year. 

The property of ecclesiastics is divided, 

1 st. Into such as is received from their 
parents by inheritance or gift, or in any 
other secular way. 



i 5 8 



SECOND PLENARY COUNCIL 



2d. Into that which is acquired by indus- 
try, e. g. from extrinsic labor attendant upon 
ecclesiastical functions. 

3d. Again, into such as accrues from the 
ecclesiastical revenue, by living economi- 
cally and frugally. 

181. Of all these three sorts of posses- 
sions, ecclesiastics have full right of pro- 
erty. 

The reason is, that they are but the 
compensation of external labor in the ad- 
ministration of the sacraments. (C. S. Poe- 
nit. 1824, apud Gury, De Just. vol. 1. p. 4 19.) 

Moreover, neither any positive law nor 
the nature of the ecclesiastical state inca- 
pacitates clergymen from holding property. 
Though called into the vineyard of the 
Lord, the priest takes no vow of poverty, 
and therefore retains the full right of pro- 
perty, within the limits laid down by the 
Church. (Bened. XIV. De Beatif. 1. 3. c. 34. 
n. 23.) 

182. Besides those already mentioned, 
there are goods purely ecclesiastical, which 
are derived from the income of a benefice. 
All canonists agree that they can be used 
as a means of honorable livelihood, and 



OF BALTIMORE. 



159 



that whatever remains over and above 
should be given to the poor. In case, how- 
ever, of neglect to do so, no strict obliga- 
tion of restitution arises. 

183. It may be asked whether the salary 
of pastors and assistants in this country is 
considered a benefice, and whether in con- 
sequence there exists any obligation of 
giving what remains to the poor. 

We answer : 

1 st. That the perquisites of the sacra- 
ments of baptism and marriage are not in- 
tended, according to the canons, to be used 
for the support of the household of clergy- 
men. 

2d. Independently of them, the income 
of the benefice is the means of support. 
Hence the salary, in this country, is intend- 
ed to furnish the means of sustentation. 

Now, as there are no benefices in these 
States, it cannot strictly be said that what 
is over and above out of this salary must 
be given to the poor. 

But even though we should admit that 
the salary, or income, is a benefice, it is 
generally such that nothing superfluous 
remains, if it even suffice to support the 



l6o SECOND PLENARY COUNCIL 

household ; so that we scarcely think that 
any scruples need be entertained in this 
regard. If, however, large tracts of land 
belong to the Church, the revenue should 
be considered the income of a benefice. 
(Kenr. vol. i. p. 300.) 

The poor, of course, should always be 
looked upon as entitled to a share of the 
solicitude of priests. 



OF BALTIMORE. 



CHAPTER XII. 

Right of Property of Regulars and Nuns. 

C. Bait. tit. viii. De Regular, c. i. ii. p. 209-218 : Gury ed. Ball, 
torn. ii. tract. De Stat. c. iii. p. 81 : Cone. Trid. sess. xxv. c. 2. 

§ 38. REGULARS OF BOTH SEXES, BOUND BY 
SOLEMN VOWS, MAY HOLD PROPERTY AS 
A COMMUNITY : AS INDIVIDUALS, THEY 

CANNOT. SUCH AS HAVE BUT SIMPLE 

VOWS MAY HAVE PROPERTY, BUT CAN- 
NOT LICITLY DISPOSE OF IT WITHOUT 
PERMISSION. 

184. All religious, of both sexes, bound 
by the solemn vow of poverty, are incapa- 
ble of the right of property. The commu- 
nity, however, or monastery, has this right. 
No religious, therefore, can hold property 
as an individual, or personally and privately; 
though all the members collectively, or as 
forming a community, can do so. 

Hence the maxim, whatever a religious 
11 



SECOND PLENARY COUNCIL 



acquires, is not for himself, but for the 
monastery. (See C. Trid. sess. xxv. c. ii. 
on Ref.) 

The words of the Fathers of Trent are : 

" For no regular, therefore, whether man or wo- 
man, shall it be lawful to possess or hold as his own, 
or even in the name of the convent, any property, 
movable or immovable, of what nature soever it may 
be, or in what way soever acquired ; but the same shall 
be immediately delivered up to the superior, and be 
incorporated with the convent. Nor shall it hence- 
forth be lawful for superiors to allow any real property 
to any regular, not even by way of having the interest 
or the use, the administration thereof, in commendam. 
But the administration of the property of monasteries, 
or of convents, shall belong to the officers thereof, only 
removable at the will of their superiors." (Sess. xxv. 
c. ii. on Ref.) 

That the community, however, may hold 
propert)< T , is thus set forth by the Council 
of Trent : 

" The Holy Synod permits that henceforth real 
property may be possessed by all monasteries, with the 
exception, however, of the house of the brethren of 
St. Francis (called) Capuchins, and those called mi- 
nor observants." (Sess. xxv. c. iii. on Ref.) 

We pass to the right of property of 
those religious that have but simple vows. 
185. Any religious, of either sex, bound 



OF BA L TIMORE, 



merely by a simple vow of poverty, has the 
right of direct dominion of his property. 
That is, he may possess, though he cannot 
lawfully dispose of property without per- 
mission from the superior. Yet, if he 
should do so, even against the will of the 
superior, the act would be valid, though 
illicit. This holds good, even though a 
religious who is bound only by simple 
vows does not belong to an order or con- 
gregation approved by the Holy See, but 
to one approved merely by the ordinary. 
For it is the nature of simple vows that 
they oblige the religious to renounce all 
right of disposing of property without the 
permission of the superior. (Gury, torn. ii. 
p. 82. ed. Bailer. 1869.) 

186. From this we draw the following 
practical conclusions : 

(a) That all Sisters of Charity retain the 
direct right of property ; can hold posses- 
sions in their own name, and have private 
property ; they cannot, however, dispose 
of it lawfully without the permission of 
their superior. 

(b) The same applies to all the other 
nuns and sisters, with the exception of 



1 64 SECOND PLENAR Y CO UNCIL 



some convents of the Visitation ; all ex- 
cept the latter having but simple vows. 
(See Deer. S. Prop. 1864, ap. C. Bait. tit. 
viii. c. ii.) 

(c) The Holy See, however, can allow, 
and has in fact in many instances allowed 
nuns bound by solemn vows to have the 
right of property as individuals. 

In 1820, this right was granted to the 
nuns of Belgium, though under solemn 
profession. 

{d) Again, the Holy See could even en- 
join absolute poverty in the case of simple 
vows, it being a matter of ecclesiastical 
discipline. 

(e) All these conclusions apply equally 
to religious of both sexes, male and female. 



OF BALTIMORE. 



CHAPTER XIIL 

On Sacraments in General. 

See O'Kane, Notes on Rubrics, c. iv. n. 297. p. 129 : Cone. 
Plen. Bait. II. tit. v. c. i. p. 121-126: Walter, § 268 : C. 
Trid. sess. vii. prceem. 

§ 39. DIVINE INSTITUTION OF SACRAMENTS. 

187. Sacraments, which are instruments 
of grace, were instituted immediately by 
Christ, though some of them may have 
been promulgated by the apostles. 

Their matter and form, too, as the 
Church holds, were ordained by the Sa- 
viour. The Church claims no power to 
determine or change the substance of the 
sacraments. 

But to her have been confided their ad- 
ministration, and the various ceremonies 
pertaining to it. These are matters of dis- 
cipline. They may suffer change in the 
course of time. 

Protestants maintain that only two sa- 



SECOND PLENARY COUNCIL 



craments, namely, baptism and the Lord's 
supper, were instituted by Christ. But 
even these two are being cast off by them, 
and faith is proclaimed all-sufficient. 

1 88. Various popes have laid down rules 
to be observed in the administration of the 
Sacraments. Clement VIII., in 1596, is- 
sued the Roman Pontifical for episcopal 
functions ; as also the Ceremonial of Bish- 
ops in 1600. Paul V. caused the Roman 
Ritual to be printed for the use of parish 
priests. This is at present, with but slight 
changes, generally used. 

§ 40. LANGUAGE : INTERROGATIONS IN BAP- 
TISM ARE PUT IN THE VERNACULAR: 
VARIOUS OPINIONS. 

189. The Latin language should be used 
in the administration of the sacraments. 
Some writers, indeed, thought that the 
vernacular should be introduced. This, 
however, is contrary to the spirit and law 
of the Church. Besides, the rites and cere- 
monies can be explained by plain and well- 
adapted instructions, given either before or 
after the administration, or at some other 
convenient time. 



OF BALTIMORE. 



167 



190. Here the question occurs whether it 
is allowed sometimes to use the vernacu- 
lar in the interrogations of baptism. The 
Council of Baltimore quotes and approves 
the following decree of the First Provincial 
Synod of Baltimore : 

" We declare, that according to the prescription of 
the Roman Ritual, priests are bound to use the Latin 
language in the administration of the sacraments and 
burial of the dead ; and if chey should think it expe- 
dient for the sake of explanation, to add the transla- 
tion in the vernacular, they shall make use of that 
only which is approved by the ordinary." (N. 214, p. 
124.) 

Again : 

" The Fathers strictly command all priests never 
to omit the Latin form of prayers." (Ap. Cone. Plen. 
Bait. II. p. 124, n. 215.) 

From all this, O'Kane, in his " Notes on 
the Rubrics," concludes: 

" But at least, it is certain that the priest is never 
justified in simply omitting the Latin and substituting 
a translation in any of the interrogations or prayers 
of the ritual." (L. c. p. 131.) 

Add to this an answer of the Sacred Con- 
gregation of Rites, September 12, 1857, in 
which, to the question whether the interro- 
gations used in baptism could be recited in 



1 68 SECOND PLENAR Y CO UNCIL 



the vernacular, or at least repeated in it 
after being pronounced in Latin, the answer 
was in the negative. 

191. This would even, according to 
O'Kane, make it necessary to admit no 
one as sponsor who is not instructed to 
answer the interrogations in Latin, which is 
simply impracticable. Besides, a custom 
has pretty generally prevailed of proposing 
them (these interrogations) in the vernacu- 
lar, since sponsors for the most part are 
unable to answer in Latin. The editions 
of the ritual used in Ireland, England, and 
America give a translation of the questions 
and answers annexed to the Latin form. 

That which has been published for the 
use of the English Church, pursuant to a 
decree of Westminster, does not differ in 
this respect from those that preceded. 
The compendium published for the use 
of the clergy in the United States, likewise 
gives a translation of the questions in 
English, French, and German. This com- 
pendium was published according to a de- 
cree of the Third Provincial Council of 
Baltimore, with the approval of Gregory 
XVI. (O'Kane, L c. p. 129.) 



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169 



192. The custom of putting the interro- 
gations in the vernacular, if we are cor- 
rectly informed, prevails all over the United 
States, and this custom would seem to be 
the best interpreter of the law. In this 
sense the following may be quoted : 

" The priest goes to the entrance of the church, or 
standing near the baptistery, he asks the questions pre- 
scribed in the ritual, and this be does in the vernacu- 
lar idiom, which is always to be used when the ritual 
prescribes an interrogation that is addressed to lay- 
men." (Romsee, vol. iii. pars iii. c. i. art. i. § viii. 
P- 35 1 -) 

The same opinion is advanced by Baruf- 
faldi (tit. xi. no. 3. 1792), and seems to 
be the only one that can practically be car- 
ried out. 

193. Nor do we think the argument ad- 
duced from the decree of the Fourth Pro- 
vincial Council of Baltimore to the point. 
The decree does not say, " interrogatio- 
num " forma nunquam omissa, but, " pre- 
cum " forma nunquam omissa. The dif- 
ference between the two seems apparent 
enough without any comment. The argu- 
ment of O'Kane, therefore, is not to the 
point. 



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SECOND PLENARY COUNCIL 



In this opinion I am confirmed by Ken- 
rick, who says that the custom which ex- 
ists in some parts of the United States, of 
reciting some of the " prayers," of baptism 
and marriage in English, was abolished 
by the First Council of Baltimore, which 
granted, however, that the " prayers " hav- 
ing been recited in Latin, an English 
translation might be added. This is to 
be done sparingly, lest the Latin " pray- 
ers " should gradually be omitted entirely. 
(Kenr. Mor. vol. ii. tract, xiv. p. 102.) 

The word prayer is repeated here three 
times, whilst the word interrogations is 
never used. Hence O'Kane seems to 
stretch the decree of the First Council of 
Baltimore too far. 

194. The only valid argument we can 
see is the answer of the Congregation of 
Rites, September 12, 1857. But this de- 
cree is, strangely enough, not even alluded 
to by the Fathers of Baltimore. 

If it meant anything at all, it would for- 
bid even the repeating in the vernacular, 
questions that had been recited in Latin. 
Hence, too, it w 7 ould be of equal force 
against all translations of these questions. 



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171 



Universal custom, and the utter impractica- 
bility of answering those questions in Latin, 
seem to be sufficient reasons for maintain- 
ing that the interrogations used in the ad- 
ministration of the sacrament of baptism 
may be made in English. 

§41. RITUAL : IS THE FORM OF MATRIMONY 
PRESCRIBED IN THE ARCHDIOCESE OF 
BALTIMORE BINDING THROUGHOUT THE 
UNITED STATES? 

195. As regards the ritual to be used, 
the Council of Baltimore renews a former 
decree: " Resolved, that a ritual be issued 
conformable to the Roman, . . . that it be 
printed at Baltimore, by authority of the 
Most Reverend Archbishop, and be fol- 
lowed all over the United States." (P. 124.) 

196. This ritual differs somewhat from 
the Roman in regard to matrimony. The 
mandate of the Most Reverend Archbishop 
of Baltimore is as follows : 

" In order that uniformity may exist in those rites 
that are added in the celebration of marriage, accord- 
ing to the received custom of this province, we enjoin 
all priests of this diocese in future to use only the follow- 
ing formula : 



SECOND PLENARY COUNCIL 



" ist. After the contracting parties have expressed 
their consent and joined hands, . . . first the bride- 
groom, then the bride, in a clear tone of voice, pro- 
nounce these words : I, N. N., take thee, N. N., for 
my lawful wife (husband), to love, and to hold, from 
this day forward, for better, for worse, for richer, for 
poorer, in sickness, and in health, till death do us 
part. 

" 2d. The priest then says, Ego conjungo vos, etc. 

" 3d. Whilst the bridegroom puts the ring on the 
ringer of the bride, he says, With this ring I thee wed, 
and I plight unto thee my truth in the name of the 
Father, and of the Son, and of the Holy Ghost. 
Amen." 

This is dated Baltimore, Easter Sunday, 
1867, and signed by Archbishop Spalding. 

197. Two questions may here be asked: 
1 st. Is this addition to the Roman ritual 

lawful ? 

2d. Is it obligatory, even if lawful, on all 
the faithful in the United States ? 

As regards the first question, we answer 
that it is lawful. 

The ritual itself, after the form of mar- 
riage, has these words : " Or other words 
may be used according to the custom of 
each province." 

198. In regard to the second question, 
it is equally clear that it does not bind 



OF BAL TIMORE. ! 73 

except in the Diocese of Baltimore. This 
is apparent from the very mandate itself: 
"We enjoin on priests of this diocese (Balti- 
more) in future to use but the following 
formula." 

Nor did the archbishop act by com- 
mand of the Plenary Council. For no de- 
cree was issued giving him power either 
to change or insert anything as obligato- 
ry outside his own diocese. The Council 
merely renews the decree that the ritual 
be published at Baltimore, under the super- 
vision of the archbishop. 

This mandate, then, of itself, does not 
bind outside of Baltimore. 

199. But, at least, may it not be followed 
in other dioceses ? We should rather say 
no. The custom of each province should 
be observed, according to the ritual. Now, 
with but few exceptions, we think custom 
favors the form of marriage simply as it is 
given in the Roman ritual, and translated 
by order of the Council of Baltimore. 

This, therefore, should be observed, 
until some positive enactment to the con- 
trary is made by the respective bishops. 

The form, we may remark, prescribed in 



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the mandate, is the one which is universally 
used in mixed marriages. By the mandate, 
it is to be adopted in purely Catholic as 
well as in mixed marriages. 

200. Of late this form has not unfre- 
quently been employed in Catholic mar- 
riages, even outside the Archdiocese of Bal- 
timore. In the new edition of the ritual 
of 1872, as also the large one of 1873, this 
form has been embodied in the marriage 
formula, which would seem to indicate the 
general tendency of adopting it everywhere. 



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175 



CHAPTER XIV. 

On Sacraments in Particular. — Baptism. 

Cone. Plen. Bait. II. tit. v. c. ii. p. 126 : O'Kane, Notes on 
Rubrics of Rom. Rit. c. iii. p. 95 : Franzelin, De Sacr. in 
Genere, thesis xvi. xvii. p. 197 seq. : Walter, Jus Can. § 272. 
p. 531, edit. Bonn. 1839. 

§ 42. PASTORS ARE FORBIDDEN TO BAPTIZE 
CHILDREN NOT BELONGING TO THEIR 
PARISH. 

201. The Fathers of Baltimore but too 
correctly remark that so many of our Pro- 
testant friends grow up and become old, 
and finally drop into the grave, without 
ever having entered the Church of Christ 
by baptism, though they falsely bear the 
name of Christians. Pastors should sharply 
reprehend the negligence of Catholic pa- 
rents, who but too frequently defer for a long 
time the baptism of their infants. (C. Bait, 
p. 127, n. 225.) 

202. Again, they say : 



j 76 SECOND PLENAR Y CO UNCIL 

" The ordinary minister of baptism is the bishop in 
his diocese, the pastor in his parish. 

" Hence such priests as rashly baptize children 
brought from another parish or diocese, when they 
could easily have been baptized by their own pastor, 
are indeed in every respect most reprehensible. This 
abuse, already noted in the Sixth Provincial Council 
of Baltimore, we again condemn and prohibit." (C 
Bait. p. 128. n. 227.) 

The difficulties arising from this point 
are neither few nor slight. 

It may safely be said that the strict ob- 
servance of this decree would promote har- 
mony among the clergy, and further the 
interests of religion among the people. 

203. It may happen that, on account of 
serious reasons, parishioners have an in- 
vincible repugnance to have their children 
baptized by their pastor. It may not, in 
consequence, be unlawful for a priest in 
rare and exceptional cases to baptize, under 
such circumstances, children not belonging 
to his parish. 

The Fathers of Baltimore censure those 
priests who rashly, i. e. unnecessarily and 
without any reason, baptize persons outside 
their parish. In all cases, however, it will 
be well to obtain the consent of the respec- 
tive pastor. 



OF BALTIMORE. 



204. Another great difficulty occurs 
here. In places where there are purely 
German and English speaking congrega- 
tions having separate churches, the faith- 
ful of the latter will often hear mass at 
the German church, and also present their 
children for baptism to the pastor thereof. 
Now it would seem that the latter has no 
right to baptize such children. German 
Catholic churches are very often built at 
the door of those of English-speaking 
congregations, and this is allowed by the 
ordinary, as it is well understood that 
.the German Catholics should belong to 

the German pastor, irrespective of place. 
Hence jurisdiction is given him over the 
Germans, not the English-speaking people. 
We speak, of course, of ordinary cases, as 
no one will deny that sometimes exceptions 
must be allowed. 

§ 43. BAPTISM OF CHILDREN OF NON- 
CATHOLIC PARENTS. 

205. Regarding the baptism of children 
of non-Catholic parents, the following is laid 
down : 

12 



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SECOND PLENARY COUNCIL 



"We think that the children of non-Catholics 
brought by the parents themselves, should be bap- 
tized as often as there is hope of a Catholic education 
being given them. Care, however, must be taken to 
have a Catholic godfather or godmother. The priest 
should remember that, in danger of death, whenever 
the occasion presents itself, all infants not only can, 
but should be baptized." (Cone. Plen. Bait. II. p. 128. 
n. 229.) 

206. Besides this, another case not un- 
frequently occurs. 

The mother, for instance, may be Cath- 
olic, the father a heretic. She wishes to 
have the child baptized a Catholic, but 
he refuses his consent. The mother then 
secretly goes to the Catholic pastor, and 
requests him to baptize her child. Can he 
comply with her request ? 

We answer, yes. St. Liguori (Horn. 
Apost. tract, xiv. punct. ii. n. 21.) main- 
tains : 

(a) That children of infidel parents can- 
not be baptized against their will, if they 
remain with their parents, and have not yet 
attained the use of reason. 

(b) Children of heretics, however, can be 
baptized even against the will of their pa- 
rents, though it be not always expedient 



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179 



to do so. The reason is, that heretics are 
" per se " subject to the laws of the Church ; 
whilst infidels are not 

In our case, the mother being a Catholic, 
there is no danger that the child will lose 
its faith ; and hence it should be baptized 
even against the will of the father. 

Besides, if married according to the rules 
of the Church, he was obliged to promise 
to have his children, both male and female, 
brought up Catholics. He cannot, in con- 
sequence, refuse now to allow this. 

§ 44. SPONSORS. 

207. The sponsors, too, should be Cath- 
olics. (Rit. Rom. apud C. Bait, p, 129.) 

In this respect, we may observe, with 
O'Kane, that an infidel, in the strict sense, 
that is, one who is unbaptized, cannot act 
validly as sponsor. Again : In mixed com- 
munities, where Catholics and Protestants 
live together, and often even intermarry, 
a Protestant is sometimes selected to act 
as sponsor, and this is the cause of great 
embarrassment to the priest. He cannot, 
however, in any circumstance, admit one 



l8o SECOND PLENARY COUNCIL 

who is not a Catholic. Laymann and one 
or two others, speaking of Germany, hold 
that he might, in cases where the refusal 
would give very great offence ; but in this 
they are opposed to the common opinion 
of theologians. (O'Kane, p. 95.) 

208. In such circumstances the priest 
might appoint a Catholic sponsor, who 
would really act as such, and permit the Pro- 
testant to be present merely as a witness, 
taking care to note this in the registry ; 
or he may omit in the ceremony whatever 
regards the sponsor, and have none at all. 
Better, according to Dens, to baptize sol- 
emnly without a sponsor, than admit a 
heretic to act as such ; and Bouvier would 
apply the same rule to all who are clearly 
excluded by the rubric. (Ib.) 

209. If the priest has been careful to 
inquire beforehand, and ascertain who are 
to be presented as sponsors, he will prob- 
ably find some pretext for setting aside 
those who are unfit, without giving offence. 

210. Again, the same author says : 

" The secular clergy are not excluded from the 
office of sponsor by this rubric, but they have been 
sometimes excluded by diocesan or provincial statutes. 



OF BALTIMORE. igl 



Some have doubted whether the priest who baptizes 
could at the same time act as sponsor, since he should 
thus respond to the interrogations put by himself, etc. 

" It is very probable, however, that he can do so 
by substituting another to give the responses and act 
in his place. Even this substitution is unnecessary, 
when there is a godmother, for she can answer the 
interrogations. 

" It is certain that a sponsor can act by means of a 
proxy, and in this case, the principal, and not the 
proxy, contracts the relationship, according to a de- 
cision of the Sacred Congregation." (J. OKane, 
Notes on the Rubrics, c. iii. n. 231-234, p. 95, 96.) 
"Parents cannot act as sponsors of their children." 
(O'Kane, 1. c. n. 223, p. 91.) 

211. Regarding baptism given at private 
houses, the Fathers of Baltimore say : 

" We command that in future priests should never 
dare to confer baptism outside the church, except in 
cases of imminent danger of death, in cities having 
one or more churches. 

" But if, on account of inclemency of the weather, 
roughness of roads, poverty of parents, or some other 
serious reasons, this cannot be done, we leave it to the 
prudence and conscience of the missionary to baptize 
them at home, with all the ceremonies of the Church." 
(C. Bait. p. 131.) 

212. The statutes of the Diocese of New- 
ark allow children living more than three 



182 



SECOND PLENARY COUNCIL. 



miles from the church, to be baptized at 
home. (Statuta, edit. 1869, cap. ii. § 5.) 

These statutes also enjoin that the names 
of those who are baptized should be imme- 
diately recorded on the baptismal register, 
in the priest's own handwriting. (Ib. § 4.) 

This is well worthy of attention, and if 
carried out, will prevent the names of such as 
were baptized from being lost or forgotten. 

Continued negligence in this matter, is 
more or less sinful. 

Again: 

" When there are two sponsors, they should be of 
different sexes — not two males, nor two females." 
(O'Kane, p. 91.) 

u When there is only one sponsor, it is usual to se- 
lect one of the same sex with the child ; but there is 
no obligation, since the words of the rubric, taken 
from the decree of Trent, leave the choice free." (L. c. 
n. 222. p. 91.) 

§ 45. CEREMONIES OF ADULT BAPTISM. 

213. We have often been asked, whether 
the formula of infant baptism which has 
been used by dispensation in the baptism 
of adults, may still be employed in the lat- 
ter. To this we ingenuously reply that we 



OF BALTIMORE. 



183 



do not know how to answer. The Fathers 
of Baltimore petitioned the Holy See to 
extend the permission of adopting the short 
formula in the baptism of adults, which 
expired in 1870, for ten or twenty years 
further. 

However, the Holy See, replied : 

" Let the respective bishops apply again, when the 
time of the last concession has expired." (Ap. Cone. 
Plen. Bait. p. 133.) 

214. The solution of the difficulty there- 
fore rests upon a question of fact. Have 
the respective bishops applied for and ob- 
tained an extension of this privilege ? 

To this question we cannot return a 
satisfactory answer. Tn the Diocese of 
Newark, nothing definite is known by the 
clergy. 

The bishop may possess such a privilege. 
But the fact has never been communicated 
to the priests, and they are left to guess 
whether or not the faculty has been pro- 
longed. The same, we are informed, is the 
case in various other dioceses. Hence a 
diversity of practice in this regard is grad- 
ually becoming prevalent. Some priests 
take it for granted that these privileges 
-+ Lu Ay W-^^x , /{U teJ^tCt)' >*-^<^ C 



1 84 SECOND PLENA RY CO UNCTL 

have been renewed again ; others, however, 
doubt this. 

The former, of course, use the ceremo- 
nies of infant baptism even in the baptism 
of adults; the latter are not always con- 
sistent in the matter — some of them using 
the short form; others, the long one. It 
w r ould therefore seem desirable to have 
some positive measures adopted on this 
point by our prelates. (Cf. O'Kane, 1. c. 
n. 459. p. 193.) 

215. In the United States of America, 
until recently, the ceremonies prescribed 
for infant baptism were used in the baptism 
of adults also, in virtue of faculties granted 
by the Holy See. In 1852, these faculties 
were renewed only for five years, with an 
intimation that they should not be again 
renewed; and accordingly, since 1857, the 
American clergy are required to observe 
what is prescribed by the rubrics for adult 
baptism. (O'Kane, n. 459, p. 193.) 

This, at first sight, would seem to conflict 
with the petition addressed by the Fathers 
of the Second Plenary Council of Baltimore 
to the Holy See, asking for an extension 
to all the dioceses in America of the per- 



OF BAL TIM ORE. 



I8 5 



mission to use in adult baptisms the cere- 
monies prescribed for the baptism of infants, 
which permission had existed in some dio- 
ceses till the year 1870. 

The Fathers of Baltimore here evidently 
take it for granted that in some dioceses 
this privilege existed up to 1870; while 
O'Kane contends that in 1857 ^ had be- 
come extinct in all dioceses. This discrep- 
ancy arises perhaps from the fact that bish- 
ops of some dioceses obtained particular 
indults, while O'Kane refers to the general 
state of affairs. Any other supposition 
would oblige us to infer that O'Kane fell 
into an error of fact. 

Nor is it allowed to baptize adults, who 
are converts, and whose former baptism ap- 
pears doubtful, simply with natural water, 
omitting all the ceremonies. (Cone. Plen. 
Bait. 1. c.) 

§ 46. RECEPTION OF CONVERTS INTO THE 
CHURCH. 

216. In regard to the reception of con- 
verts into the Catholic Church, the Sacred 
Congregation of the Holy Office has laid 
down the following method : 



SECOND PLENARY COUNCIL 



"ist. If baptism is conferred absolutely, no abju- 
ration or absolution follows, as all sins are washed 
away by the Sacrament of Regeneration. 

" 2d. If baptism be repeated conditionally, the 
following will be the manner of procedure : 

" (a) Abjuration, or profession of faith. 

" {b) Conditional baptism. 

" (c) Sacramental confession, with conditional ab- 
solution. 

" 3d. When the former baptism is judged to be 
valid, abjuration only and absolution from censures 
take place." 

§ 47. BAPTISM OF HERETICS. 

217. But here another difficulty presents 
itself. When is the baptism of heretics to 
be considered either doubtful or valid ? Is 
there any certain criterion ? The Holy 
See has repeatedly answered, that no fix- 
ed rule can be universally established — 
that each case must be examined apart. 
Now by what rule can we be guided in 
this examination ? O'Kane divides the 
sectaries into three classes — those who are 
certainly baptized, those who are certainly 
unbaptized, and those whose baptism is 
doubtful. (O'Kane, Notes on Rubrics, p. 
189.) 



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I8 7 



As to those of the first class, no one, we 
believe, says O'Kane, doubts that baptism 
is validly conferred, not only in the Greek 
Church, but amongst the Eutychians, Nes- 
torians, and other Oriental sects ; and the 
same is true, according to Bouvier (De 
Bapt. c. vi. act. 2. § 3), of the sect known in 
France as " La Petite Eglise." These sects 
not only use rituals which prescribe the es- 
sential matter and form, but also profess the 
Catholic doctrine regarding the efficacy and 
necessity of baptism, which is a sufficient 
guarantee of the care that is taken to have 
it properly administered. When a convert, 
therefore, from any of these sects, is receiv- 
ed into the Church, he is not to be baptized. 
"He simply makes the abjuration and con- 
fession." (O'Kane, p. 190.) 

218. To the second class, namely, those 
who are certainly not baptized, belong those 
individuals who were never baptized, owing 
to the neglect of parents, who look upon 
the baptism of their children as a use- 
less ceremony, though they themselves are 
members of some sect professing to hold 
baptism. (O'Kane, 1. c.) 

That such is but too frequently the case, 



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is attested by the Fathers of Baltimore. 
(Cone. Plen. Bait. II. 1. c. n. 225.) To 
this class must be added some sects that 
reject baptism altogether, as the Quakers; 
and converts from amongst them should 
therefore be baptized absolutely. (O'Kane, 
1. c.) 

219. The third class, continues O'Kane, 
" those whose baptism is doubtful, em- 
braces almost all the sects that go under 
the general name of Protestants : most of 
them, it is true, in their rituals prescribe all 
that is essential to baptism, and if we had 
sufficient security that it is always adminis- 
tered by them in exact accordance with 
their rituals, we should have no reason to 
doubt its validity. But their errors regard- 
ing the efficacy and necessity of the sacra- 
ment gradually lead to habitual careless- 
ness, and frequently substantial defects in 
its adminstration, so as to leave reason- 
able ground for doubting, in any given 
case, whether it was rightly conferred." 

Hence the practice now so extensively 
received of baptizing, sub conditione, con- 
verts from the various sects of Protest- 
anism ; though inquiry should be made in 



OF BAL TIM ORE. 1 3g 

each case. (O'Kane, 1. c. p. 191 ; Perrone, 
De Bapt. c. v. note.) 

220. Of baptism in the Anglican Church, 
this author tells us, " if we could have suffi- 
cient certainty about the baptism conferred 
in any Protestant sect at the present day, 
it would be about that conferred by the An- 
glicans ; for the Book of Common Prayer, 
which contains their ritual, prescribes all 
that is essential to the sacrament, and, 
moreover, seems to convey the Catholic 
doctrine respecting its efficacy and neces- 
sity ; yet there is always a sufficient reason 
to doubt, in any particular case, whether it 
has been actually conferred in the manner 
described by the Prayer Book." 

Many of the Anglican ministers simply 
ridicule the supposition that the salvation 
of a child depends on whether or not it has 
been washed with water. Since, then, the 
validity of the rite depends on the applica- 
tion by the minister of the proper matter 
and form with the intention of doing what 
the Church does, it cannot be surprising 
that a doubt should be entertained whether 
it may not have been invalidly " performed 
by men who confessedly think it of little 
importance." (O'Kane, p. 192.) 



I go SECOND PLENAR Y CO UNCIL 

221. " Again, as a matter of fact," O'Kane informs 
us, " it is very often administered in a manner which 
leaves its validity doubtful. 

" It is admitted that baptism by aspersion or 
sprinkling is valid ; but if the water which is sprinkled 
falls merely on the dress, it is certainly null ; if it 
falls only on the hair and does not touch the skin, the 
baptism is at least doubtful ; and the same is to be 
said, if not more than a drop or two should touch the 
skin. Now it is well known that very frequently the 
minister contents himself with dipping his finger in 
the water and throwing one or two drops on the child, 
without much anxiety as to whether they may touch 
the skin or merely fall on the dress. . . . Hence it 
cannot be surprising that," as a general rule, " con- 
verts from the Anglican Establishment as well as those 
from other Protestant sects are baptized conditionally." 
(O'Kane, Notes, p. 192.) 

" If, therefore, as is commonly the case, with a con- 
vert from any sect, a reasonable doubt remains, he 
should be baptized conditionally." (O'KLane, 1. c. p. 
189-195, 3d edit. Donahoe, Boston.) 

This, we think, is clear, and sound, and 
needs no comment. 

222. We merely point to the fact that, as 
O'Kane says, the doctrine of the sectaries 
on the efficacy and necessity of baptism, 
and the consequent carelessness of these 
men in its administration, is one of the 
grave reasons that should induce us to 



OF BAL TIM ORE. l g l 

doubt the validity of this sacrament as con- 
ferred by heretics. 

This must not be misunderstood. It is, 
as all know, not necessary to hold the Cath- 
olic doctrine on baptism in order to adminis- 
ter it validly. It is merely requisite to have 
the intention of doing what the Church 
does. Hence a Jew, who certainly does 
not believe in the Catholic teaching on 
baptism, its efficacy and necessity, yet may 
validly baptize if he but intends to accom- 
plish what the Church does. Nor is it es- 
sential that he should have the purpose to 
perform what the " Catholic " Church does 
— the general intention of doing what the 
true Church does, whoever she may be, 
being sufficient. Neither is it indispen- 
sable that he should intend this in a par- 
ticular manner, that is, to perform a sacra- 
mental rite conferring grace ; for this can- 
not be the intention of a Jew, who knows 
nothing at all about the sacraments in 
general or in particular. It is sufficient, 
then, that he should direct his intention to 
the act in a general manner, or, as theolo- 
gians say, with but an indistinct knowl- 
edge of the nature of the action he per- 
forms. Thus Altisiodorensis says : 



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SECOND PLENARY COUNCIL 



" The general intention is expressed in the word 
'baptize,' and that expression suffices for the intention 
of the Church, of effecting namely what the Church 
does, although one does not believe that it has any 
efficacy." (Apud Franzelin, De Sacr. in Gen. thesis 
xvi. p. 206.) 

223. It is not, therefore, the defect in 
doctrine that renders the baptism of here- 
tics invalid. But it is rather their negli- 
ence in the administration, which is indeed 
the result of their erroneous belief. Yet it 
must not be imag-ined that the intention is 
not essential. The pouring of water and 
the pronouncing of the form may be done 
in jest and ironically, and if so done, they 
cannot be for a moment considered as sac- 
ramental actions. 

The matter and form must be adminis- 
tered in the name and authority of Christ, 
or, in other words, the action must be per- 
formed ministerially or officially. (Franze- 
lin, 1. c.) 

The sacramental action must therefore 
be wrought formally, not simply materially ; 
for it becomes a sacrament or channel of 
grace, only when it is morally the act of 
Christ himself. Hence the general in ten- 



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193 



tion of doing what Christ instituted is es- 
sential to a sacrament. 

224. This teaching is confirmed by the 
condemnation of proposition 28th by Alex- 
ander VI II., Dec. 7th, 1690, which is as 
follows : " That baptism is valid which is 
conferred by a minister who observes the 
entire external rite and form of baptism, but 
who within his heart makes this resolve : 
I do not intend to do what the Church 
does." The censure applies to the errone- 
ous teaching of heretics, not to the doctrine 
of Catharini, whose opinions must not be 
confounded with those of the so-called re- 
former. In fact, may it not often occur 
that an heretical minister should in his 
heart positively exclude the intention of 
the Church, as most of them seem to think 
baptism to be a mere external rite, if not a 
farce ? 

It would appear, then, that there are 
many grave reasons upon which is based 
the custom so generally prevailing of bap- 
tizing conditionally converts. 

It may finally be asked, are those con- 
verts whose previous baptism is doubtful, 
and who are to be baptized conditionally, 
13 



1 94 SE COND PLENA RY CO UNCIL 

required to make a full sacramental con- 
fession, or are they merely to be advised 
to confess one sin in order to obtain ab- 
solution ? 

Some theologians held that they were 
not bound to make any sacramental con- 
fession, as the obligation was doubtful, and 
therefore not binding. Many confessors 
acted accordingly. But it has been de- 
cided by a recent decree of the Holy Office, 
Dec. 1 7, 1 868, that such converts must make 
a full sacramental confession. (O'Kane, 
p. 195.) The absolution must be condi- 
tional. This holds good a fortiori, when 
the previous baptism is judged valid, and 
when the abjuration only is required. A 
full sacramental confession must then be 
made, either from the date of baptism, when 
received as an adult ; or from the age of 
seven, when received in infancy. 



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CHAPTER XV. 

Confirmation. 

See Cone. Plen. Bait. II. p. 136, n. 252, 253 : Kenrick, Mor. ii. 
tract, xvi. De Confirm, p. 125 seq. : Statuta Dioc. Novarc. 
c. ii. § 10. edit. 1869. p. 24. 

§ 48. SPONSORS. 

225. The Fathers of Baltimore among 
other things inculcate the following : 

" Though it belong not of necessity to this sacra- 
ment that there be a godfather and godmother, since, 
however, such is the praiseworthy custom of the 
Church, prescribed by the holy canons, bishops should 
earnestly strive to introduce this discipline every- 
where, as has been already done in several provinces. 
Candidates for confirmation will each have a separate 
sponsor, nor should men stand for girls, or women 
for boys. If this, however, cannot be done, there 
should be at least two godfathers for the boys, and 
two godmothers for the girls." (Cone. Plen. Bait. II. 
I. c. n. 253.) 

According to the custom of the Church, 
a grave obligation exists of having a spon- 



ig6 



SEGOND PLENARY COUNCIL 



sor at confirmation. However, in this coun- 
try this custom does not prevail. (Kenr. 
Mor. ii. p. 125.) 

Hence the omission of a sponsor with 
us would not be a mortal sin. The words 
of the Fathers just cited convey no such 
obligation. 

Again : The godfather places his right 
hand on the right shoulder of the one to 
be confirmed : which custom, though dif- 
ferent from that prescribed by the pontifi- 
cal, was approved by the S. C. of Rites 
on Sept. 20, 1749. (Kenr. 1. c.) 

226. The statutes of the Diocese of 
Newark likewise enjoin this laudable prac- 
tice of having separate sponsors for each 
candidate of confirmation. 

" We desire that according to the decree of the 
Second Plenary Council of Baltimore, the praise- 
worthy usage existing in the Church of having sepa- 
rate sponsors for each one to be confirmed, be also 
introduced into our diocese.*' (Statuta Dioc. Novarc. 
cap. ii. § 10. p. 24. edit. 1869.) 

227. The custom of adding the name of 
a saint to the one received in baptism 
is also recommended by these statutes. 
" This name should also be written on a slip 



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I 9 7 



of paper, which will be given by the pastor 
to each of those who are to be confirmed, 
as a testimonial that the bearer is suffi- 
ciently prepared to receive the sacrament." 
(Statuta, 1. c.) 

This suggestion, if well attended to, 
saves great annoyance and delay. By pre- 
senting this slip of paper, with the name 
on it, the bishop is enabled to go on 
smoothly with the ceremonies, and things 
proceed without confusion. 



I98 SECOND PLENARY COUNCIL 



CHAPTER XVI. 

Holy Eucharist. 

Vid. Cone. Plen. Bait. II. tit. v. c. iv. p. 137 seq : St. Alphons. 
Horn. ap. tract, xii. : Rituale Rom. De Exequiis. 

§ 49. time of fulfilling paschal, 
precept: violation. 

228. The Fathers of Baltimore again 
promulgate the decree of the Fourth La- 
teran Council, to wit : 

" Each of the faithful of both sexes having arrived 
at the years of discretion, shall faithfully confess all 
his sins to his pastor at least once a year, ... re- 
ceiving reverently the Holy Eucharist at least during 
the Easter time ; otherwise in life he shall be separated 
from the Church, and in death, deprived of Christian 
burial." 

229. The time within which this precept 
can be complied with begins on Palm Sun- 
day and ends on Low Sunday, both inclu- 
ded. (C. Bait. 1. c.) But this time may 
be prolonged by necessity, custom, or priv- 
ilege. In America, by special indult of 



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Pope Pius VIII., it extends from the first 
Sunday in Lent to Trinity Sunday. (L. c.) 

The penalty of excommunication and 
privation of ecclesiastical burial annexed to 
the violation of this decree is not latae sen- 
tentiae, but ferendae sentential ; that is, this 
censure is incurred only after a judicial 
sentence. St. Liguori thus speaks : 

" By virtue of the law contained in the decree 6 Om- 
nis utriusque,' etc., a twofold punishment is inflicted 
on those that violate the precept of confession and 
communion, that of interdict namely, and of privation 
of ecclesiastical interment. 

"But these penalties are incurred only after the 
sentence of the judge." (Horn. Apost. tract, xii. n. 38.) 

230. It follows, consequently, that one 
who has infringed this precept and dies 
suddenly, is not to be deprived of Christian 
burial except on proper judicial sentence. 

This case not unfrequently takes, place. 
Thus, for instance, Titius, an adult Catholic, 
has neglected for twenty years his Easter 
duty. The fact is pretty well known among 
Catholic neighbors. He is stricken dead 
suddenly, without having a priest, or re- 
ceiving the sacraments. Is Titius to be 
deprived of Christian burial ? 



200 SECOND PLENARY COUNCIL 

We answer : 

ist. If Titius dies not only without any 
sign of contrition, but positively refuses the 
sacraments or ministry of the priest, he can- 
not receive ecclesiastical interment. 

2d. If he is called from earth so sudden- 
ly as to be unable to ask for a priest, or 
even manifest a sign of sorrow, but without 
positively refusing the sacraments, it seems 
better to be on the side of mercy and clem- 
ency. 

231. This is clearly set forth in the Ro- 
man Ritual, De Exequiis, under the title : 
lis quibus non licet dare ecclesiasticam 
sepulturam. 

The reply is : 

All those shall be deprived of Christian 
burial, of whom it is publicly known that 
they did not receive once a year, namely, at 
Easter, the sacraments of confession and 
communion, and who died without any 
signs of contrition. 

This rubric certainly applies chiefly to 
such persons as die of a natural death, and 
who are capable of deliberation before that 
solemn moment. But when persons are 
snatched suddenly from life without being 



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201 



able to express any sign of repentance, we 
think that the rubric does not at least pri- 
marily reach them, and that therefore they 
may be buried with all the rites of the 
Church. Doubtful cases must be referred 
to the bishop, who will decide what is to 
be done. 

It is therefore a general rule that the 
above sinners, who die without refusing the 
sacraments, are entitled to the benefit of 
the doubt, and may receive Christian burial. 

§ 50. AGE AT WHICH CHILDREN ARE BOUND 
BY THIS PRECEPT. 

232. We pass to another point. 

It has not been defined by the Church at 
what age children should receive first holy 
communion. 

" It may be laid down as a general rule, which, 
however, is not without exceptions, that no one should 
receive this bread of angels before the age of ten ; nor 
should it be refused to any one, who is otherwise dis- 
posed, after the age of fourteen." (Cone. Plen. Bait. 
II. 1. c. n. 261. p. 141.) 

In like manner, St. Alphonsus says : 
"The obligation of receiving holy communion 



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begins ordinarily from the ninth year, and should not 
be deferred beyond the twelfth, or at the highest four- 
teenth year." (Horn. ap. tract, xii. n. 43.) 

This, too, we believe is the custom in 
America. In German congregations there 
is perhaps greater uniformity on this point 
than among the English-speaking missions. 
The age at which children receive among 
the former is twelve : among the latter, it 
varies between nine and fourteen. 

233. The precept of confession is obliga- 
tory on children, when they arrive at the 
age of discretion or have the use of reason, 
which is generally the age of seven. 

In some German parishes in America a 
custom prevails by which children go to 
confession only when they are about to 
receive first holy communion, which is at 
the age of twelve. Accordingly, where 
this practice is predominant, children would 
not seem to be bound to observe the Lat- 
eran decree with regard to confession be- 
fore that age. 

Now, it is true, as the Fathers of Balti- 
more say : 

" That it has never been defined by the Church at 
what age children are obliged to go to confession. 



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203 



For some acquire the use of reason sooner, others 
later. We therefore leave this matter to the prudence 
and zeal of the pastor." (L. c. n. 292. p. 157.) 

Again, many theologians make the age, 
when the obligation begins, depend entirely 
on the custom of a place or country. (See 
Lacroix, tract, x. disp. iii. n. 21; Laymann, 
lib. v. tract, iv. c. iii.) 

Sotus maintains that children do not fall 
under this precept before the age of twelve. 
Valentia holds : 

" That children, before the twelfth year, do not pos- 
sess that discretion which obliges them to receive 
communion or go to confession. , ' (Tom. 6. disp. 6. 
qu. 8. punct. 4.) 

The common opinion, however, is to 
the contrary. It is customary also in the 
United States to send them to confession at 
the age of seven or eight years. This we 
hold to be undoubtedly the safer opinion. 

Billuart says : 

"The opinion of some, that children, namely, do 
not commit mortal sins before the twelfth year, is an 
error. I should, however, believe with many theolo- 
gians, that they do not incur the penalty of violating 
this precept before the age of twelve, as the Church 
does not seem to include them." (Billuart, torn. iii. 
dissert, v. art. ii. De Pcenit.) 



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One thing is clear, namely, that more 
discretion has always been required by the 
Church for communion than for confession. 
This, too, is in accordance with the nature 
of the respective sacraments. Confession 
is a preparation for communion, and there- 
fore should be received at an earlier age. 

§ 51. ADMINISTERING HOLY COMMUNION 
WITH STOLE ONLY. 

234. A custom prevails in America that 
in administering holy communion to the 
sick, the priest is merely vested with the 
stole, and without having on a surplice 
under it. 

This seems to be allowed by the Fathers 
of Baltimore : 

u Never, however, except in case of extreme neces- 
sity, should priests ever touch the sacred host itself, or 
the vase containing it, except robed with the stole." 
(Cone. Plen. Bait. II. p. 143.) 

In church, however, they should not ex- 
tract the blessed sacrament from the taber- 
nacle, without being vested in stole and 
surplice. (Ib.) 

Yet St. Liguori says : 



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205 



" To administer the holy eucharist without stole and 
surplice, doctors generally hold to be a mortal sin." 
(Lib. vi. n. 241.) 

And the Sacred Congregation, being 
asked whether the practice predominant 
in some places of administering commu- 
nion to the sick with the stole alone, 
" super vestem communem," and without 
the surplice, might be allowed, answer- 
ed : " Negative et eliminata consuetudine 
servetur ritualis Romani praescriptum." 
(Apud O'Kane p. 381.) 

Yet Kenrick, in speaking of the manner 
of giving holy communion to the sick, says : 

" In administering it (to the sick), the stole at 
least must be used, sub gravi peccato." 

Then he adds : 

" But if possible, the surplice also should be worn, 
according to the monition of the First Council of Balti- 
more." (Mor. ii. tract. De Euch. p. 135.) 

From this it seems clear that our great 
American archbishop and theologian did 
not interpret the aforesaid decree as 
strictly applying to America. Certainly 
he could not have been ignorant of its ex- 
istence, as it had been issued as early as 
December 16, 1826. (In una Gandavens.) 



2o6 SECOND PLENARY COUNCIL 



235. It appears certain, therefore, that 
the Blessed Eucharist may be administered 
to the sick in this country with the stole 
only over the ordinary secular dress. 

The custom of doing so may have arisen 
from the difficulty of carrying along a cas- 
sock on sick-calls, which ought to be worn 
under the surplice. Nothing indeed looks 
more ridiculous than to use the surplice 
over the ordinary civilian's dress. 

If the surplice be put on, it seems 
equally desirous, if not obligatory, to wear 
the cassock. But, besides the difficulty of 
bringing it along, the necessity of laying 
aside the coat in a room filled with people, 
in order to vest in cassock and surplice, 
seems no less inconvenient. Often only 
one room is at the disposal of the priest. 
That apartment is not unfrequently the 
kitchen, sleeping and sitting room, all com- 
bined. 

We are of opinion, therefore, that there 
are various weighty reasons that will ex- 
plain and excuse the practice of vesting in 
stole only, which obtains in this country, 
and if not always, at least often make its 
observance lawful. 

y^^j^V^ c^c^wl 



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207 



236. The Blessed Sacrament can be kept 
only at one place in each church. (Cone. 
Plen. Bait. II. p. 143.) 

" By special indult of the Holy See, Sisters of 
Charity, and women of other religious communities 
who have charge of orphan asylums, hospitals, and 
other institutions (such as schools), have the privilege 
of keeping the Blessed Sacrament in their private 
chapel with a light burning before it ; the key of the 
tabernacle must be kept by the priest. " (Kenr. Mor. 
ii. tract, xvii. § iv. p. 167.) 



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CHAPTER XVII. 

On Penance. 

See Cone. Plen. Bait. II. 1. c. cap. v. p. 145 seq. : Walter, Jus 
Can. § 280. p. 549: Ballerini, ap. Gury, ii. p. 368. 

§ 52. PUBLIC CONFESSION. NATURE OF 

RESERVATION. 

237. Public confession was practised 
during the first ages of the Church. Yet 
it was restricted generally to sins that 
were public, or at least publicly committed. 
Not unfrequently, however, secret crimes 
and sins were openly avowed. This was 
a voluntary confession on the part of 
the penitent. However, public confession 
soon gave rise to various abuses, and was 
consequently abolished under Leo L, in 
459. 

238. The penance imposed in those early 
ages was very severe. This rigor grad- 



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209 



ually disappeared during the thirteenth 
century. 

However, public penances are to a cer- 
tain extent still given for public offences, 
in order to repair the scandal that may 
have been caused. At present all sacra- 
mental confession is secret, being made to 
the priest only, who is under the strict- 
est obligation of inviolably preserving the 
secret of confession. The absolution was 
given, in the early days of Christianity, only 
after the lapse of a long penance, which 
lasted at times for many years. Gradually 
this also was changed, and the practice 
became prevalent of absolving penitents 
immediately after the oral confession, and 
of performing the penance afterward. This 
is at present the universal custom of the 
Church. (Walt. 1. c. p. 552 seq.) 

239. The Fathers of Baltimore say : 

"Jurisdiction, whether ordinary or delegated, can 
undoubtedly be diminished and limited by the author- 
ity of the superior. " (P. 149.) 

This is called by moralists " reservation 
of cases." 

Formerly it was maintained by St. Li- 
guori, and perhaps the greater number of 
14 



210 



SECOND PLENARY COUNCIL 



theologians, that a reservation affected the 
confessor directly, and the penitent only 
indirectly ; that, therefore, it took away 
from the confessor jurisdiction over re- 
served sins, even when the penitent was 
ignorant of the reservation. 

240. This opinion has received a severe 
blow at the hands of Father Ballerini in 
his notes on Gury. He says : 

" This reasoning, namely, that the reservation re- 
stricts the power of the confessor, which, by the way, 
is the principal argument in the case, can conclude 
nothing. For that the reservation is a restriction of 
jurisdiction, we all profess; but whether the law re- 
serving also comprehends a sin committed in igno- 
rance of its reservation, or through fear, as also out- 
side the territory affected by the law, are questions 
which are not solved by the fact that reservation is a 
limitation of jurisdiction. In a few words : Because 
the reservation is a restriction of jurisdiction, it does 
not follow that the restriction itself is applicable to 
a given case in particular, or extends indiscriminately 
to all cases." 

241. Again : 

" The second opinion holds that every reservation 
is penal, and that ignorance consequently excuses 
from all reservations. ... To this opinion we ad- 
here." (Salmantic. apud Ballerini, not. ad Gury, 
vol. ii. p. 368 seq. edit. Rom. 1869.) 



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211 



This opinion, therefore, considers every 
reservation a punishment, which is not in- 
curred when the offender is ignorant of 
the penalty attached to the commission of 
a sin ; and this is held by most eminent 
theologians, such as the Salmanticenses, 
Lugo, Sanchez, Sporer, Rone. (Apud Ball. 

1.C) 

The practical result of this reasoning 
would be that in very many instances the 
confessor could absolve penitents from re- 
served cases in this country ; especially 
from such as are reserved by bishops, since 
the people are for the greater part ignorant 
of them. Yet, as Ballerini well observes, 
this would not render discipline lax, as the 
confessor should at the earliest opportunity 
admonish the penitent that the sin is re- 
served, and thus the reservation would take 
effect in future. 

242. It is forbidden, as the Fathers of 
Baltimore add, under severe censures, to 
ask the name of the accomplice or asso- 
ciate in any crime. (Cone. Plen. Bait. p. 
151.) 



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SECOND PLENARY COUNCIL 



§ 53. CONFESSIONALS. 

243. The following decree of previous 
Councils of Baltimore is renewed : 

" We greatly urge all prelates to endeavor to have 
confessionals erected in all the public churches of these 
provinces ; and when they have been thus set up, it 
shall not be lawful for any priest to hear the confes- 
sions of women in any other place, without the special 
permission of the ordinary. 

" By the church, the sacristy is not meant, except 
it be situated in such a manner that it is public and 
open." (Cone. Plen. II. n. 294. p. 158.) 

In conformity with this decree, the Stat- 
utes of the Diocese of Newark ordain : 

" We forbid, under pain of suspension from hearing 
confessions, 'ipso facto incurrendas,' all priests in this 
diocese to hear confessions of women or girls in pri- 
vate houses or rooms, or anywhere else outside of 
confessionals erected in the church, in an open place." 
(Stat. c. ii. § 8. p. 21.) 

244. Case. — Titius, not thinking of this 
stringent law, is asked to hear confessions 
in a church of the above diocese. 

The other confessionals are already oc- 
cupied by confessors, and^he is forced to 
sit at the altar railing, where men and wo- 
men indiscriminately come to him. 



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213 



At another time, he finds that the con- 
fessional has no grate, but merely an open 
space in the upper part: he thus hears the 
confessions of women, thinking that the 
law does not strictly comprehend these 
cases. 

245. In reply to the first case, it seems 
evident that no censure was incurred, as 
there was no intention of violating the stat- 
ute, but mere forgetfulness. It might fur- 
ther be asked whether Titius would have 
trenched upon the law by hearing confes- 
sions of women at the railing, even though 
he had been conscious, at the time, of the 
diocesan legislation. We think he would 
have formally infringed the statute. It is 
true, one might object that the primary 
and chief intent of the law is to enact that 
confessions of women should be heard in 
the church only ; and not in any secret 
place, lest ground for suspicion should be 
given. Hence, too, it might seem that this 
end is sufficiently reached by the action 
of Titius, and that therefore the law would 
appear to have been complied with. Yet 
we do not think this to be a satisfactory 
reply. The Council of Baltimore and the 



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Statutes of Newark clearly mention "con- 
fessionals," and inhibit the hearing of 
women except in them. 

246. But let us suppose that during the 
paschal season, or in a mission, when there 
is a great concourse of penitents, there is 
not a sufficient number of confessionals. 
Could, in that case at least, the confessions 
of women also under the plea of necessity, 
be heard in the aforesaid manner ? We 
think this necessity can scarcely ever oc- 
cur. For in such a case all the men might 
be heard at the altar railing, or in some 
other convenient place, and the confes- 
sionals could be reserved solely for the 
women. 

If, however, the necessity alluded to 
should really exist, we think the law would 
no longer bind, as the statutes themselves 
provide that in such a conjuncture the 
bishop should be consulted if possible. 
Where this is impracticable, we can see no 
reason why the obligation should hold. 

247. In regard to hearing penitents in a 
confessional without any grate, the same 
rule does not seem applicable. Confes- 
sionals may not always have the grate, as 



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215 



the Statutes of Newark appear themselves 
to admit, for they subjoin : 

" Missionaries should try as soon as possible to 
have a becoming grate put in their confessionals." 
(Stat. Dioc. Novarc. 1. c.) 

§ 54. JURISDICTION, ORDINARY AND 
DELEGATE. 

248. Another case not unfrequently 
takes place. It is this : Sylvius, a mem- 
ber of a religious order, is requested by 
some pastor of a different diocese to assist 
in hearing confessions on some great fes- 
tival. This he cheerfully consents to do. 
But lo, after Sylvius has heard a large 
number of penitents, and taken it for 
granted that the pastor had procured the 
necessary jurisdiction from the ordinary, he 
accidently finds out that the former had 
forgotten altogether to apply to the bishop 
for the necessary faculties. He is there- 
fore greatly troubled about the matter. 
The pastor, however, quiets his mind, 
reminding him that priests of a religious 
community can hear confessions in any 
diocese without special permission ; that, 



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moreover, in this instance, the Church sup- 
plies the defect, there being a " titulus 
coloratus;" that parish priests, according to 
Laymann and other eminent theologians, 
have ordinary jurisdiction over their flock, 
by virtue of their pastoral charge ; that, 
therefore, they can delegate this jurisdic- 
tion to other confessors as far as their own 
parishioners are concerned. 

249. In reply, we say : 

1 st. Jurisdiction being authority over 
such only as are subjects, the bishop of 
the diocese exclusively grants the right 
of absolving penitents residing in his dio- 
cese. Priests from other dioceses must, 
therefore, in all cases, obtain faculties from 
the ordinary of the diocese in which they 
wish to hear confessions. 

2d. Priests belonging to religious com- 
munities are subject to the same law, ac- 
cording to the Breve of Innocent X., 
which reads thus : 

" Regular priests approved for one diocese, cannot 
hear confessions in another diocese without the ap- 
probation of the bishop of that place." 

The penitent, it is true, according to the 
universal custom of the Church, may go to 



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217 



confession anywhere. But the confessor 
himself cannot hear confessions except in 
the diocese from whose ordinary he has 
been approved. Only one exception to 
this rule occurs, when the penitent, name- 
ly, having incurred a censure in one diocese, 
goes to a priest in another diocese "in frau- 
dem reservationis," that is, with the intention 
of evading the law. In such a case the 
absolution would be invalid. 

3d. A pastor in the canonical sense of 
the term has ordinary jurisdiction "in foro 
interno " over his parishioners. And hence, 
if we mistake not, he might, theoretically 
speaking, communicate it to priests com- 
ing from other dioceses, when they are ap- 
proved. Yet practically, even in Europe, 
this power has been greatly restricted by 
the Council of Trent, as we shall see. In 
America there are no canonically consti- 
tuted pastors, and consequently their juris- 
diction is not ordinary, but merely dele- 
gated. Hence they have no power of dele- 
gating others. All priests, therefore, from 
other dioceses, must have permission from 
the ordinary of the place, in order to hear 
confessions. 



2 1 8 SECOND PLENAR V CO UNCIL 

4th. As regards the u titulus coloratus," 
there was no such title in the case, as 
Sylvius never really obtained jurisdiction. 
There was merely a " titulus existimatus ; " 
the faithful being under the impression 
that all was right. Now, if but one or two 
confessions had been heard, the Church 
would not supply the defect, for she does 
this only when the error is general. But 
if there were more than a dozen, we think 
that the Church would supply. (Vid. Gury, 
ii. p. 346, edit. Bailer. 1869.) 

Finally, parish priests could formerly 
confer jurisdiction upon such priests as had 
been approved by the bishop. But after 
the Council of Trent, jurisdiction and ap- 
probation have become synonymous, being 
always conferred simultaneously by the 
bishop. And hence, even in Europe, pas- 
tors no longer confer jurisdiction on other 
priests, even over their own flock. 

250. Some writers affirm that a "pas- 
tor" may call any "parish priest" of another 
diocese to hear confessions in his parish, 
without obtaining the approbation of the 
bishop, as the parochial benefice gives uni- 
versal jurisdiction ; others, with St. Liguori, 



OF BAL TIMOR E. 



deny this. Benedict XIV. admits that in 
places where the practice of doing so ex- 
ists, the affirmative opinion practically ob- 
tains. 

We conclude, then, in the words of Inno- 
cent XII., a. d. 1700: 

" That confessors, whether regular or secular, who- 
ever they may be, can in no sense hear penitents with- 
out the approbation of the bishop of the place in 
which the penitents approach this sacrament." 



SECOND PLENARY COUNCIL 



CHAPTER XVIIL 

Indulgences. 

See Cone. Plen. Bait. II. De Indulg. p. 158 seq. : Benedict XIV. 
torn. x. Instit. xlviii. edit. Prati, 1846. 

§55. CAN BISHOPS GRANT INDULGENCES? 

251. St. Thomas holds that bishops 
have no power of granting indulgences 
"jure divino," it being an act of jurisdic- 
tion, which they receive directly from the 
Pope. (Summa, pars iii. suppl. quaest. 
xxvi. art. iii.) 

By virtue of a decree of the Ecumenical 
Council of the Lateran, held under Inno- 
cent III., bishops may grant an indulgence 
of one year at the dedication, but not mere 
blessing of a church. Moreover, they can 
impart an indulgence of forty days for any 
other just reason. 

252. Case 1. — During a mission that 
was given by some priests of a religious 



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community, the bishop was requested to 
grant an indulgence of three hundred days, 
to all who frequented the mission, receiv- 
ing the sacraments and complying with the 
usual conditions. The bishop replied that 
he doubted whether he could do so ; but 
would consult some canonist. We ask, 
therefore, can the bishop grant an indul- 
gence of three hundred days ? 

The answer is not difficult. Ordinarily 
the bishop has the power of granting an 
indulgence of forty days, and no more, ex- 
cept in the case specified. He may, how- 
ever, obtain by special indult from the Holy 
See an extension of this power. As this does 
not seem to have been the case, the bishop 
could not give an indulgence of three hun- 
dred days. (Cf. Laymann, tract, vii. c. iv.) 

Of course an indulgence of forty days 
could have been granted, as a mission may 
be considered a just cause for it. 

§ 56. INDULGENCES OF FORTY HOURS* 
DEVOTION. 

253. Case 2. — Cornelius, pastor of a 
large congregation, is about to celebrate 
the Forty Hours' Devotion in his parish. 



2 22 SE COND PLENA RY CO VNCIL 

It is to begin at the high mass on Sunday. 
He announces to his people on the preced- 
ing Sunday, that by approaching the sac- 
raments of penance and holy eucharist, 
and by complying with the other conditions 
prescribed, they will receive a plenary in- 
dulgence. On the following Saturday, a 
great number of penitents come to confes- 
sion in order to gain the indulgence. Many 
ask him whether they can obtain it bv re- 
ceiving holy communion at the first mass, 
which is celebrated several hours before 
that of the exposition. He replies in the 
affirmative, as they would thus receive mor- 
ally during the exposition. But Pomponius, 
another pastor, hearing of this, absolute- 
ly contradicts the assertion of Cornelius, 
arguing that holy communion is one of the 
essential works of the Forty Hours, and 
must, therefore, be received within the time 
of its actual duration. 

254. Solution. — It would seem that the 
reasoning of Pomponius is not correct. 
The condition we speak of is thus ex- 
pressed : Ut iis vero qui confessi et sacra 
communione refecti, Ecclesiam visitave- 
rint in qua Sacra Eucharistia exposita est. 
(Cone. Plen. II. Bait. p. 196.) 



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Now it would appear to us from this that 
the chief scope of the Devotion of the Forty- 
Hours is not to receive holy communion, 
but rather to offer up during the exposition 
prayers and adoration before the Blessed 
Sacrament, and thus to kindle anew, in the 
hearts of the faithful, faith and devotion to 
this ineffable mystery of love. Hence too, 
one of the necessary conditions of gaining 
the indulgences is to visit the church in 
which the devotion takes place, once a day 
during the exposition. Therefore, perpet- 
ual adoration of the Blessed Eucharist is 
evidently the principal object of this de- 
votion. Holy communion is but a neces- 
sary condition to place the soul in a state 
of grace, to render it capable of receiving 
the indulgence. 

255. Again: Time, in these things, is 
computed, as Benedict XIV. well observes, 
not mathematically, but morally. Now, 
no one will deny that the Forty Hours' 
Devotion begins morally on Sunday morn- 
ing at the first mass. 

Besides, custom thus interprets the law 
in this country. 

Another moral connection between holy 



224 SECOND PLENARY COUNCIL 

communion in the case and the exposition 
results from the intention, by which holy 
communion is received with the view of 
gaining the indulgence of the Devotion. 

256. Benedict XIV. (torn. x. Institut. qu. 
xlviii.) gives a similar case, and decides 
it according to the principles just touched 
upon. A custom prevails in Rome of 
celebrating a high mass on the first day 
of each month in the basilica of St. Peter. 
Whosoever assists at it, and receives the 
sacraments of penance and holy eucharist, 
gains a plenary indulgence. 

As the mass is said early, there are 
many who cannot " receive " at it. Hence, 
Benedict XIV. asks whether one would 
still gain the indulgence by receiving these 
sacraments at any time during the same day. 
Benedict XIV. answers in the affirmative, 
for the very reason that time is not com- 
puted mathematically, and that the sacra- 
ments are received ''intuitu indulgentiae 
lucrandae," and because, moreover, favors 
should not be strictly interpreted. 

We may add that this great pontiff seems 
to suppose that holy communion may be 
received before the mass in question, on 



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account of the words " contritis et com- 
munione refectis," which appear to indicate 
that these conditions are more profitably 
placed before any other work. 

257. The reasoning in the case of Bene- 
dict XIV., we think, applies with equal 
cogency to our question. 

We feel sure, then, that by going to con- 
fession on Saturday, and receiving holy 
communion on Sunday at the mass pre- 
ceding the exposition, the indulgence of 
the Forty Hours' Devotion is gained. Nay, 
we think this to be more in conformity 
with the mind of the Church, and of greater 
spiritual benefit to the recipient. 

Then, too, all the conditions of the in- 
dulgence would be complied with in the 
state of grace. And although theologians 
maintain that it is sufficient for the faithful 
to be in the state of grace when the last 
work prescribed is fulfilled, yet no one will 
deny that it is better to do them all in the 
state of grace. 

258. That the chief object of this devo- 
tion is the adoration of the Blessed Sacra- 
ment, is well expressed thus: 

"Pope Clement VIII., in his constitution 'Graves 
15 



226 SECOND PLENARY COUNCIL 

etdiuturnae 1 (Nov. 25, 1592), seeking a heavenly rem- 
edy for the public calamities of the Church, ordained 
that this devotion of the forty hours, beginning from 
the first Sunday of Advent, on which day it would be 
celebrated every year in the chapel of the Apostolic 
Palace, should proceed from one church of the city 
of Rome to another successively, so that through the 
whole course of the year the faithful should be able 
to visit somewhere their Lord in the most holy Sacra- 
ment exposed to public veneration, and should em- 
brace the occasion of pouring forth their prayers 
night and day before Him, and of craving His mercy 
in their necessities." (Ap. Statut. Novarc. Dioc. p. 74.) 



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CHAPTER XIX. 

Extreme Unction. 

Cone. Plen. Bait. II. 1. c. p. 161. c. vii. : O'Kane, Notes, p. 406, 
413.415. 425 : Walter, Jus Can. lib. vii. cap. v. § 319. p. 636. 

§57. SUBJECT OF THIS SACRAMENT \ WHEN 
IT MAY BE REPEATED. 

259. With regard to the subject or re- 
cipient of Extreme Unction, we quote from 
O'Kane as follows : 

" Extreme Unction is to be administered only to 
those who are in danger of death from disease already 
affecting the body." (O'Kane, Notes, p. 415, n. 859.) 

Again : 

" It is enough, however, that a person is prudently 
judged, from the apparent symptoms, to be in danger, 
even though the danger does not really exist. This 
appears to be conveyed in the present rubric, which 
requires only that one be so ill 'ut mortis periculum 
imminere videatur.' " (O'Kane, ib.) 

" As soon, then, as it can be prudently pronounced 
that one is in danger of death from sickness, even 
though the danger be not proximate, even though 



228 



SECOND PLENA R Y CO UNCIL 



there be a hope of recovery, the sacrament may be 
administered." (O'Kane, ib.) 

" Benedict XIV. lays it down as a rule, that when 
children are considered capable of receiving the sac- 
rament of penance, they may also be considered capa- 
ble of receiving extreme unction." (0"Kane, Notes, 
p. 415, 416.) 

260. Again, it is asked, how often may 
this sacrament be repeated ? 

In answer to this question, we quote from 
the same author : 

"It is the doctrine taught by St. Thomas, and after 
him by all theologians, viz. that in the same sickness, 
and whilst the same danger of death continues, the 
sacrament cannot be administered a second time (ac- 
cording to many, not even validly) ; but that it may 
be repeated as often as a person, having recovered 
from the danger, again falls into it, even during the 
same sickness." (O'Kane, Notes, n. 878, p. 425.) 

The trouble is, at times, how to know 
whether a person has so far recovered that 
it should be again administered in case of 
relapse. " In a short sickness, the recov- 
ery is either complete or merely apparent." 
(Ib.) In an illness of long duration, such 
as consumption or the dropsy, changes for 
the better frequently take place. In one 
of these changes, a person in manifest 



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danger of death at present, may be over 
this danger in a few days, and be tolerably 
well for several weeks or months, although 
it is known that the disease still continues 
(as in consumption), and is even likely to 
end fatally. In such a case, when the dis- 
ease takes another turn, and the person is 
again in similar danger, extreme unction 
may be again administered ; for though the 
disease is the same, the " state " of the dis- 
ease is different. (O'Kane, 1. c. p. 426.) 

261. The practice of giving extreme 
unction monthly, is thus referred to : 

" It is the practice of some, in all cases of tedious 
illness, to repeat extreme unction after the interval 
of a month. It would be hard to reconcile this prac- 
tice with the rubric and the words of St. Liguori 
above cited, when it is certain that the same danger 
has continued all the time. But it often happens that, 
all things considered, there is a doubt whether the 
state of the disease has really changed, whether the 
danger has at any time ceased, or has all along con- 
tinued ; and in this case of doubt the priest is re- 
commended to administer the sacrament again, as 
more in accordance with the ancient practice of the 
Church. (Ib. p. 427.) Now it may be contended that 
there is, generally speaking, ground for such a doubt 
in the case of any one who lives a month after receiv- 
ing extreme unction, and is still in danger of death ; 



230 



SECOND PLENARY COUNCIL 



and that therefore, in a tedious illness, the sacrament 
should, as general rule, be repeated after the lapse of 
a month." (P. 427, O'Kane.) 

These suggestions we have thought op- 
portune to transcribe from the excellent 
work quoted above. 

262. Yet it must be borne in mind that 
whenever it is certain that po change has 
occurred in the disease, it would be wrong 
to repeat the unction monthly. Thus the 
author quoted says : 

"But a mere continuance of life, no matter how 
long, does not of itself justify the administration of 
the sacrament a second time. All theologians seem 
to be agreed that a recovery of some kind is required." 
(O'Kane, p. 426.) 

263. The oil used in extreme unction 
must be blessed by the bishop according 
to the usage of the Latin Church. In the 
Greek Church, bishops consecrate holy oil 
on Thursday of Holy Week ; and with it 
all who are present at the ceremony are 
anointed; while the oil used immediately 
for extreme unction is blessed by simple 
priests. (Walt. 1. c. p. 637.) 



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CHAPTER XX. 

Holy Orders. 

Cone. Plen. Bait. II. 1. c. cap. viii. p. 165 : Soglia, J. Can. lib. i. 
c. vi. § 53. torn. ii. p. 95 : Kenrick, Mor. torn. ii. tract, xx. 
De Ordine, 269 seq. : Walter, Kirchenrecht, lib. v. § 204. p. 
405 : Cone. Trid. sess. xxiii. chap. iii. and iv. 

§ 58. HIERARCHY : EXAMINATION FOR 
ORDERS. 

264. " Holy Order imprints an indeli- 
ble character on the soul, by which the one 
upon whom hands are imposed is forever 
set apart and distinguished from the laity." 
(Cone. Plen. Bait. II. n. 313.) 

Protestants, including the great major- 
ity of Episcopalians, deny that clerics are 
divinely ordained or set apart for the minis- 
try. They would have them to be merely 
deputed by the lay congregation, absolutely 
rejecting any specific distinction between 
either. (Walt. 1. c. p. 398.) 

The Council of Trent says : 



SECOND PLENARY COUNCIL 



" But forasmuch as in the sacrament of order, as 
also in baptism and confirmation, a character is im- 
printed, which can neither be effaced or taken away ; 
the Holy Synod with reason condemns the opinion of 
those who assert that the priests of the New Testa- 
ment have only a temporary power : and that those 
who have once been rightly ordained, can again be- 
come laymen, if they do not exercise the ministry of 
the word of God. And if any one affirm that all 
Christians indiscriminately are priests of the New 
Testament, or that they are all mutually endowed 
with an equal spiritual power, he clearly does nothing 
but confound ecclesiastical hierarchy, which is an 
army set in array." (Sess. xxiii. c. iv.) 

265. Against the Protestant theory, 
which vests the power of ordination in the 
laity, the Holy Council thus speaks : 

" Furthermore, the sacred and holy Synod teaches 
that in the ordination of bishops, priests, and of the 
other orders, neither the consent, nor vocation, nor 
authority, whether of the people or of any civil power 
or magistrate whatsoever, is required in such wise as 
that, without this, the ordination is invalid ; yea, 
rather doth it decree, that all those who being only 
called and instituted by the people, or by the civil 
power and magistrate ascend to the exercise of these 
ministrations, and those who of their own rashness 
assume them to themselves, are not ministers of the 
Church, but are to be looked upon as thieves and 
robbers, who have not entered by the door." (Sess. 
xxiii. c. iv.) 



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233 



266. Again, the Council of Baltimore 
says : 

"In order that any one may be raised from the 
priesthood to the episcopate, the authority of the 
Holy See alone is required." (L. c. n. 315.) 

It has already been demonstrated in the 
election of bishops, that the Apostolic See 
alone appoints bishops all over the world, 
that the manner of proposing candidates 
for the episcopal office differs in the various 
countries. In European States where ec- 
clesiastical law is established, the cathedral 
chapter, composed of the oldest and most 
respected priests of the diocese, nominates 
the bishop ; while the Holy See exercises 
the right of confirming the nomination. 

In America, the bishops of the province 
select three candidates, whose names are 
sent to Rome ; from their number the Holy 
See generally selects the future bishop. 
But it may reject all the nominees, and ap- 
point some one not proposed at all. In 
fact, this has several times occurred. 

267. The Fathers of Baltimore continue : 

"We desire that in each diocese of these States, 
four, or at least three examiners be hereafter appointed 
by the bishop, who, having examined the candidates 



234 SECOND PLENARY COUNCIL 

for holy orders, . . . and being thus well informed on 
the matter, shall sincerely and truthfully report all to 
the bishop, and give their written opinion in regard to 
each of the candidates, whether he be worthy or un- 
worthy of being admitted to orders. The same exam- 
ination in regard to knowledge must be made by reg- 
ulars who are presented for ordination." (Cone. Plen. 
Bait. L c. n, 316.) 

This would seem to be a most excellent 
and necessary law. But we fear that it is 
but rarely carried out in the proper manner. 
It will avail but. little to select as examiners 
those who have made but an ordinary course 
of theology, and whose parochial charge 
does not allow them to devote their time 
to it. Nor will it be of greater use to in- 
vite one or two personal friends of the rec- 
tor of the seminary for that purpose. Such 
evidently is not the intention of the Fa- 
thers of Baltimore. They clearly mean that 
the bishop, not the rector of the seminary, 
should select the examiners, or rather that 
the priests assembled in diocesan synod 
should propose them : otherwise it is likely 
that the examination will be but an empty 
form. And yet, is it not frequently a mere 
show in some of our seminaries ? 

268. Moreover, would it not be wise to 



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extend these examinations to the appoint- 
ment of pastors ? W ould it not be more 
in accordance with the entire discipline of 
the Church, to confer the more honorable 
parochial charges upon those who have 
successfully passed through their exami- 
nation before the bishop and three or four 
examiners ? 

Bishops, we are quite aware, are general- 
ly animated with a full sense of justice in 
this respect. But are they not liable to be- 
ing misinformed? 

Will not the clergy of a diocese be in- 
clined to wire-pulling, suspicion, and discon- 
tent, when they see excellent places bestow- 
ed sometimes by the bishop on priests who, 
if examined in the rudiments of moral the- 
ology, would perhaps break down ? 

§ 59. TITLE OF ORDINATION. 

269. The Fathers of Baltimore continue : 

" Priests cannot be ordained without a title, whether 
of patrimony, or benefice, or of religious poverty." 
(P. 170.) 

The word u title " is synonymous with 
that of " church. " Tn the first ages, 



236 SECOND PLENARY COUNCIL 

churches were simply called titles. This 
custom very likely had its origin in the fact 
that churches were erected in honor of some 
saint, or mystery, the title of which was the 
name of the church. (Kenr. 1. c. p. 276.) 

Now each ecclesiastic was attached to 
some church, where he discharged vari- 
ous duties. Hence the title of ordination 
means the church or office for which a 
cleric is ordained. This service also gave 
the right to a livelihood. Hence the word 
title also means the right of receiving a 
becoming and honorable support from the 
church to which an ecclesiastic is attached, 
on account of services rendered. As the 
Church is exceedingly anxious to maintain 
the proper decorum of the sacerdotal state, 
and prevent priests from being exposed to 
penury and beggary, she ordains that no 
cleric shall be promoted to holy orders 
without being possessed of an honorable 
means of livelihood. 

This right, however, may be forfeited by 
criminal conduct. No bishop is obliged to 
support a priest whom he has been com- 
pelled to suspend on account of bad be- 
havior. But with the exception of this 



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case, the right of support remains intact. 
Sick priests are entitled to a living from 
the congregation they had been attending, 
or from the bishop. (C. PL Bait. II. n. 90.) 

270. There are six titles : 

1 st. Title of benefice — " Titulus bene- 
ficii." Where benefices are regularly estab- 
lished, the incumbent acquires the right of 
permanent support from them. 

2d. The title of patrimony comprises 
the effects and property of the parents of 
an ecclesiastic. These must be made up 
of immovable goods, or at least well se- 
cured, permanent, and sufficient for a de- 
cent support. In Europe, where a great 
many are ordained under this title, the sum 
of the annual income is fixed, and varies 
slightly, according to the cheaper or dearer 
rate of living of the several countries. 

3d. Title of table — " Titulus mensae " — 
when some benefactor, city, or State takes 
upon itself the support of an ecclesiastic. 

4th. Title of common table — " Titulus 
mensae communis" — which takes place 
when, by special privilege of the Holy 
See, one is ordained who is a member of 
a community not bound by the vow of 



238 



SECOND PLENARY COUNCIL 



poverty. Such, for instance, is the case 
with the Paulists, Lazarists, and kindred 
congregations. 

5th. Title of religious poverty — " Titu- 
luspaupertatis." This applies to members 
of a religious community bound by the 
solemn vow of poverty, who are support- 
ed by the possessions of the entire com- 
munity. 

6th. Title of missions — " Titulus mis- 
sionis " — which is peculiar to America, 
Australia, and all non-Catholic countries 
that are not yet regulated according to 
the canonical status of the Church, where, 
moreover, churches do not possess perma- 
nent funds sufficient for the support of 
pastors. 

271. In order that this title of missions 
be valid, it is necessary, 

1 st. That an ecclesiastic thus to be or- 
dained should promise to serve on the mis- 
sions perpetually. (Cf. Deer. S. Prop. Trid 
24th Jan. 1868.) 

2d. That he remain constantly in the 
diocese for which he was ordained. Of 
course he may pass to another diocese 
with the permission of the ordinary, and 



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there acquire the same rights as were pos- 
sessed by him in the first diocese. 

This oath of perpetually serving on the 
missions is absolutely necessary, and was 
insisted upon, although the Fathers of 
Baltimore requested the Holy See to dis- 
pense with it. (C. Plen. Bait. p. 170; Deer, 
ii. De Ordinat. Tit. Miss. p. cxlvii.) 

272. From the various answers of the 
Holy See on this point, it is evident that 
it desires this title to be abolished grad- 
ually, and replaced by the normal one 
either of benefice or patrimony. 

And as the latter is inseparably con- 
nected with the establishment of canonical 
parishes and pastors, the intention and de- 
sire of Rome seems to be that the normal 
discipline of the Church should be intro- 
duced as soon as possible in this country. 



SECOND PLENARY COUNCIL 



CHAPTER XXL 

On Matrimony. 

See Cone. Plen. Bait. II. tit. v. c. ix. p. 170: Walter, Kirchen 
recht, lib. vii. cap. iv. § 288 seq. p. 567 : Soglia, Jus EgcI. 
lib. ii. cap. vi. vol. ii. p. 295 seq. : Cone. Trid. sess. xxiv. 
can. v. vii. : Bened. XIV. De Synod. Dioc. lib. ix. cap. ix. : 
Blackstone's Comment, bk. i. ch. xv. 

§ 60. INDISSOLUBILITY OF MARRIAGE. 

273. The Fathers of Baltimore declare 
it to be the doctrine of the Church that 
the sacrament of matrimony is wholly indis- 
soluble ; that the principles of " free love " 
are condemned alike by natural as well 
as supernatural law ; that the opinion 
entertained by no small number even of 
Catholics, to wit, that the bond of marriage 
can be dissolved quoad vinculum, that is, 
absolutely, by the authority of the civil 
tribunal, in granting a divorce, by which 
parties would be entitled to contract a new 
alliance, is a wicked error : further, that 



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when a husband has been in the war and 
nothing heard of him since, yet the wife 
cannot marry again without having pre- 
viously ascertained with some degree of 
moral certainty the death of her former 
husband. 

Furthermore, the proclamation of the 
banns is more strictly insisted upon by the 
Fathers ; mixed marriages are strongly cen- 
sured, and such as are contracted before 
a Protestant minister severely prohibited. 

Finally, the fact is reaffirmed that in the 
United States the decree of the Council 
of Trent on clandestine marriages is not 
promulgated, and that our circumstances 
are such as to induce the Fathers to think 
its promulgation inopportune for the pres- 
ent; that accordingly the Holy See be 
requested to sanction the existing disci- 
pline, and extend it throughout the whole 
country, except New Orleans. (Cone. Plen. 
Bait. II. n. 324-330, p. 170 seq.) 

We shall briefly treat of each of these 
points. The nature of this sacrament is 
sufficiently set forth in dogmatic and moral 
theology. Canon law explains its disci- 
plinary character. 
16 



SECOND PLENARY COUNCIL 



§ 6 1. HISTORY OF ECCLESIASTICAL LEGIS- 
LATION ON MARRIAGE. 

274. We ask, has the Church any right 
to make laws regarding marriage ? Pro- 
testants generally deny that it is a sacra- 
ment, and reduce it to a mere contract. 
(Apolog. Aug. Conf. art. vii. De Numero et 
Usu Sacramentor.) Hence they subject it 
to the civil power. The Catholic Church, 
on the contrary, holds marriage to be a sac- 
rament, and consequently claims the right 
of regulating its matter and form. (Cone. 
Trid. sess. xxiv. can. xii.) 

The canon reads as follows : 

u If any one saith, that matrimonial causes do not 
belong to ecclesiastical judges \ let him be anathema." 

The history of ecclesiastical laws on 
marriage exhibits variations of considerable 
moment. Until the fifth century, but little 
change was made in secular legislation on 
matrimony, which was still pervaded by 
pagan ideas. The Church was obliged 
gradually to unfold her doctrine, and she 
succeeded but slowly in practically imbu- 
ing with her spirit the minds both of the 



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Romans and barbarians whom she had 
converted. 

275. St. Augustine was the first who 
fully expounded the nature and indissolu- 
ble character of this sacrament. When the 
Germans became converted, the Church 
asserted her full rights on this point, and 
her laws were enforced by the civil author- 
ities. This state of things continued to 
remain in existence in Catholic countries, 
with some slight variations, up to the pres- 
ent century. 

But, to use the words of the illustrious 
Archbishop of Westminster : 

" At this time there is no civil power, as such, 
either Catholic or Christian : there is no nation, in its 
organized and public life and laws, professing Chris- 
tianity. The tendency of all political and social move- 
ments is to the exclusion of Christianity from the pub- 
lic life of nations." (Sermons on Eccl. Subjects, by 
H. E. Manning, etc., vol. iii. lntrod. p. xcvi.) 

Hence, Governments have arrogated to 
themselves the power of exclusively mak- 
ing laws and prescribing the conditions 
of the matrimonial contract. In Italy and 
France, civil marriage is necessary to ob- 
tain a legal recognition of wedlock. In 
Prussia the same is now being attempted 



244 SECOND PLENARY COUNCIL 

by the Liberal majority of the " Reichstag." 
We need hardly add that this bad example 
is now followed by almost all the Govern- 
ments of the world. 

In the Greek and Russian Churches, 
canon law was incorporated into the civil 
law, the emperors becoming the final 
judges of disputed points. (Walt. p. 568.) 

Outside the Catholic Church, marriage 
is more and more coming to be considered 
a mere civil and social contract, that can 
be rescinded like any other ; hence the 
great number of absolute divorces may 
easily be explained. 

276. It may be asked, what laws has the 
Church enacted at various times concern- 
ing this sacramental contract? Where 
her legislation was not recognized by civil 
law, she endeavored as far as possible to 
conform to the latter. This prudence and 
moderation she employed in order to avoid 
unnecessary conflicts with the secular 
power. 

In general, the faithful were obliged to 
abide by the rules of the Church with re- 
gard to impediments. The mutual con- 
sent of the contracting parties was always 



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considered essential, and the Church de- 
clared every marriage valid where this con- 
sent was not invalidated by any ecclesias- 
tical impediment, even though all external 
solemnities or formalities had been disre-, 
garded, and the laws established by secular 
rulers neglected. (Walt. Jus Can. p. 573.) 

277. The presence of witnesses and the 
sacerdotal benediction were prescribed as 
conditions of licitness only, not of validity 
of this sacrament. As a result of this, 
it was soon found difficult to distinguish 
between a true marriage and mere con- 
cubinage. This is but too true of many 
marriages in America. To obviate this 
difficulty, the Council of Trent ordained as 
follows : 

1. That three proclamations should pre- 
cede the marriage : they are to be made 
on three consecutive Sundays or festivals 
of obligation. 

2. That the marriage be contracted be- 
fore the parish priest and at least two wit- 
nesses. (See Cone. Trid. sess. xxiv. cap. 
i. De Ref.) 

The transgression of the first of these 
enactments makes marriage illicit ; a viola- 
tion of the second renders it invalid. 



246 



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§ 62. DIVORCE IN GENERAL \ CIVIL 
DIVORCE. 

278. We proceed to the next question, 
that of divorce. The Fathers of Baltimore 
say : 

" It is to be sincerely regretted that the opinion 
has taken hold on the minds of many of our Catholic 
people, to wit, that the bond of matrimony can be 
totally severed by authority of the civil law, in such a 
manner as to al]ow those who are thus separated to 
enter upon a new alliance." (Cone. Plen. Bait. II. n. 
326. p. 171.) 

This opinion, the fathers, in accordance 
with Christ's words, and the reiterated con- 
demnations of the Roman pontiffs, abso- 
lutely condemn, reminding the faithful in 
the United States of a former decree, which 
admonishes bishops to prohibit, under pain 
of excommunication to be incurred ipso 
facto, any one from marrying again, on ob- 
taining a civil divorce. 

279. The law of the Church is exceed- 
ingly explicit on this point. No absolute 
divorce or dissolution of marriage is ever 
allowed, when once it has been validly con- 
tracted and consummated. 



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247 



The same holds good of all baptized 
persons, whether Catholic or sectarian. 
This doctrine was clearly maintained al- 
ready by Tertullian (t 215), Origen (f 234), 
St. Cyprian (t 258), and by all the early 
councils. (See Walt. Jus. Can. p. 622.) 

A divorce, however, from bed and board 
(a mensa et thoro), is granted by the Church 
for several reasons, such as adultery, con- 
tinued ill treatment, and for other grave 
causes. (Walt. 1. c. p. 624.) 

280. Civil law in this country, as else- 
where, differs materially on this head from 
canon law. It distinguishes two kinds of 
divorces, viz. an absolute and a partial 
divorce. Divorce itself is defined in gen- 
eral to be: 

" A dissolution of the bond of matrimony, or the 
separation of husband and wife, by the judgment of a 
court having jurisdiction thereof, or by an act of the 
legislature." (Crosby, p. 225.) 

Again, continues this author : 

" Divorces are of two kinds, a vinculo matrimonii — 
from the bond of matrimony, which dissolves and to- 
tally severs the marriage tie ; and a mensa et thoro — 
from bed and board — which merely separates the 
parties." (Ib.) 



248 SECOND PLENARY COUNCIL. 



Furthermore, he says : 

" If no constitutional provision prohibits, divorces 
from the bond of matrimony are granted by the vari- 
ous State legislatures for causes by them deemed 
sufficient ; and they are also granted, except in Mary- 
land, by the court to which such jurisdiction is given." 
(Ib.) 

Accordingly, the causes for which abso- 
lute divorces are granted, though differing 
in the several States, may be said chiefly 
to be adultery, imprisonment for some years 
on account of crimes, neglect to provide a 
decent support for the wife. 

281. Blackstone holds the same views, 
namely, that divorce is total, a vinculo ma- 
trimonii, or partial, a mensa et thoro. He 
remarks " that the canon law (which in this 
case our common law follows), will not per- 
mit the nuptial tie to be unloosed for any 
cause whatever." (See Blackst. Comment, 
bk. i. ch. 1 5.) 

The same author says : 

"The civil law allows many causes of absolute di- 
vorce, among which adultery is with reason named as 
the first and principal." (Ib.) 

282. It is scarcely necessary to add that 
in America the number of absolute divorces 



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249 



granted for comparatively insignificant and 
frivolous reasons is almost appalling. The 
sanctity of the matrimonial alliance is fast 
disappearing, and in its stead a mere hu- 
man contract is being placed, the stabil- 
ity of which depends on the will or caprice 
of the parties. 

Whence comes this state of affairs ? 
The first and chief cause lies with gov- 
ernments. They have overstepped the 
boundaries of their legitimate jurisdiction, 
and have encroached on the power of the 
Church. They have eliminated from mar- 
riage the supernatural and divine element, 
and substituted in its stead a mere human 
contract, subject to secular jurisdiction. 
Hence, they have arrogated to themselves 
the power of determining the conditions 
of the matrimonial consent. 

But no less a share of blame attaches to 
nations themselves. In a great measure 
have they thrown off the mild and sweet 
yoke of the Church ; they have excluded 
from their social life the author of its ex- 
istence and permanency. Why wonder, 
then, at hearing the cry of social demo- 
cracy and radical communism : " Down 



250 



SECOND PLENARY COUNCIL 



with marriage : let us have wives in 
common." 

283. The civil power not only trespasses 
upon the authority of the Church, but is, 
moreover, opposed to the revealed as well 
as the natural law. One of the condemned 
propositions of the Syllabus of 1864 was: 

" The bond of marriage is not indissoluble by the 
law of nature ; and in various cases absolute divorces 
may be sanctioned by the civil authority." (Prop. 67.) 

Natural law demands this indissolubility 
in order to insure the preservation and 
education of the offspring. The revealed 
law has been laid down in Holy Writ, and 
admits of no exception whatever to this 
sacred character of the matrimonial alli- 
ance. (See Matth. ix. ; also Kenr. Theol. 
Dogmat. vol. iii. tract, xviii. c. vi. p. 390; 
Kenr. Theol. Mor. vol. ii. tract, xxi. c. iv.) 

§ 63. MAY CATHOLICS IN AMERICA APPLY TO 
THE CIVIL AUTHORITY FOR DIVORCES ? 

284. Kenrick here alludes to a question 
of no ordinary practical importance. It is 
this : May Catholics ever have recourse to 



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251 



the civil authority to obtain an absolute or 
partial divorce ? 

No Catholic can recognize the power 
of granting divorce to be inherent in the 
secular magistrate ; nor can he on that ac- 
count pursue any course of action that 
might lead to such a recognition. Hence 
it would seem that he cannot in any in- 
stance sue for divorce. 

Yet it must be admitted that exceptions 
to this rule will occur. Let us, for example, 
suppose a case where the marriage is null 
by reason of an impediment. We may, 
moreover, imagine the parties to refuse to 
renew their consent or to cohabit. Sep- 
aration then becomes necessary. Yet if 
they separate without due legal form, by 
obtaining a civil divorce, and yet marry 
again, they may be punished as bigamists 
or adulterers, though their second mar- 
riage is contracted in accordance with the 
laws of the Church, and is considered valid 
by her. 

285. A similar case was decided by the 
Sacred Congregation of the Inquisition, 
Sept. 9th, 1824. It related to the marriage 
of two non-baptized persons : one became 



2 5 2 SECOND PLENAR Y CO UNCIL 

converted, while the other remained an 
infidel and was unwilling to allow the con- 
verted party the free exercise of religion. 

This marriage became null by virtue 
of custom and positive ecclesiastical law, 
as Innocent III. declares. (See Kenr. 
Theol. Dogmat. vol. iii. p. 389.) 

But as civil law does not recognize this 
hindrance, a second union by either party 
could be punished according to the civil 
code. Hence a conflict must thus arise 
between Church and State. 

In answer to this difficulty, the Sacred 
Congregation said, that the baptized party 
should obtain a civil divorce before proceed- 
ing to another alliance, not by that means 
recognizing the doctrine of civil divorce, 
but simply using the law as a protection 
against unjust vexations and legal penalties. 

286. When a marriage, however, is 
valid, and yet a separation from bed and 
board becomes necessary, in order to pre- 
vent the husband, for instance, from pay- 
ing debts of his wife, would it be lawful in 
that case to apply to the civil courts for an 
absolute divorce, if this result could not be 
achieved by a partial divorce ? 



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253 



We think with Kenrick that it could be 
done. Not that there could be any real 
intention of absolutely severing the bond 
of marriage, which is supposed to be firm 
and valid ; since the parties only make use 
of the law in order to obtain exemption 
from unjust burdens. Kenrick says : 

" In these cases, it seems justifiable to seek di- 
vorce in the civil court, not thereby recognizing any 
such power in these tribunals, or intending actually to 
dissolve the bond, but merely to escape unjust annoy- 
ances and demands." (Mor. vol. ii. tract, xxi. cap. iv.) 

For the same reasons, it is evidently al- 
lowed to procure a civil divorce from bed 
and board. 

Again, our American theologian tells us : 

" The law requires that persons legally divorced 
should renew their consent before cohabiting again. 
Catholics whose marriage was valid before the di- 
vorce, cannot of course renew their consent. But 
they may use the words necessary to satisfy the 
requirements of the law, without, however, intending 
actually to renew their consent, as it is the sacra- 
mental form." (Kenr. 1. c.) 

287. A Catholic, then, may apply for a 
civil divorce, under the conditions above 
mentioned, in these cases : 



254 SECOND PLENARY COUNCIL 



ist. He may sue for an absolute divorce 
when the marriage is invalid by reason of 
an ecclesiastical impediment. 

2d. When the marriage 'is not invalid, 
but when grave reasons nevertheless de- 
mand a separation, a partial divorce may 
be sought for. If the latter should prove 
insufficient to shield parties from unjust 
annoyances, it is justifiable to procure an 
absolute divorce. 

§ 64. IS A SECOND MARRIAGE ALLOWABLE, 
WHEN THERE IS DOUBT OF THE DEATH 
OF THE FIRST PARTY ? 

288. Passing to the next question, we 
ask, what is to be done, when a husband, 
having enlisted in the army during the late 
war of the Union, does not return with his 
regiment, and there is consequently reason 
to believe that he was killed. 

Or again, strangers, especially among 
the poorer classes with whom the parish 
priest is not acquainted, frequently wish to 
be united in holy matrimony by him. 

289. Now, it may be asked, must the 
pastor always possess absolute certainty 



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255 



of the death of the former husband or wife, 
before allowing the above applicants to 
marry again ? 

We think not. In fact, this would sim- 
ply be impossible in many cases. But 
neither is long absence, nor a vague rumor 
of the death of the former spouse, sufficient 
to contract a second marriage. Theolo- 
gians require at least a moral certainty of 
the demise. This is attained in the follow- 
ing manner : 

ist. By an authentic instrument of the 
death of the husband, signed by the rector 
of the hospital in w T hich he died, or also 
by the general in whose regiment deceased 
had served. 

2d. If this cannot be procured, the testi- 
mony of trustworthy witnesses may be ad- 
mitted. 

3d. A universal report or hearsay of the 
demise may also be taken into considera- 
tion. 

4th. The bishop shall decide, in each 
case, whether the proofs are sufficient or 
not. (See Instruct. Congr. S. Officii, June 
12, 1822, apud Cone. Plen. Bait. II. p. 172.) 

Thus the Council of Baltimore says : 



256 



SECOND PLENARY COUNCIL 



" It is evident, therefore, that before a second mar- 
riage can be licitly contracted, an incontrovertible 
certainty of the death of the first party is requisite." 
(P. 173.) 

290. We subjoin a case, which not un- 
frequently happens. 

Placidia comes to confession to Helvi- 
dius, and tells him that about twenty years 
ago, she came to this country from old Ire- 
land, with Patrick, her husband, who, how- 
ever, soon left her, and cohabited with an- 
other woman ; that she then, out of mere 
spite, married another man, a member of 
some Protestant persuasion : that this at- 
tempted alliance was blessed by a Catholic 
priest, from whom Placidia carefully con- 
cealed the fact that she was already the 
wife of another man. Nor w r as her new 
Protestant husband at all troubled about 
the matter, though she told him this fact 
before the marriage. 

He laughed at the idea of marriage 
being indissoluble, and informed Placidia 
that this was but a notion of the Romish 
creed, and that it was perfectly natural 
and right to follow one's instincts in these 
matters. 



OF BALTIMORE. 



257 



For a little while she allowed her con- 
science to be lulled asleep by these ideas 
of an over-enlightened age. A period of 
eighteen years meanwhile elapsed. Sev- 
eral children were the offspring of the un- 
lawful union. 

The former husband of Placidia had 
returned during this time, and was will- 
ing to live with her again ; but finding 
her cohabiting with her paramour, he 
went away, giving her no further trouble. 
Since then, nothing has been heard of 
him. 

At length, Placidia's conscience is roused 
from its lethargy, and she determines to 
change her life. For this purpose she 
now wishes to confess her sins. What is 
Helvidius, the confessor, to do in this 
case ? 

291. Before answering, we premise : 
1 st. A moral certainty of the death of 
the husband is required in order to allow 
Placidia to marry her paramour. Now, 
in what does this moral certainty consist ? 
Kenrick thus explains it : 

" A certainty of the death of the first husband or 
wife, is necessary to marry a second time. A moral 
17 



258 



SECOND PLENARY COUNCIL 



certainty, however, but not a mere probability, is suffi- 
cient. Now, trustworthy attestations, or also other 
circumstances in the case, may constitute a moral cer- 
tainty. Thus, if a husband, having enlisted in the army, 
does not return from the war with the remainder of his 
regiment, it may be considered as morally certain that 
he was killed, though his body was not particularly 
recognized among those that were slain. Such evi- 
dences, however, as are taken from a long-continued 
absence and silence ; from bad habits and morals, cal- 
culated to hasten death ; from poor health, or from a 
disease prevailing in a place where the person was 
known to have resided at the time ; or from similar 
occurrences, can afford but probable conjectures, in- 
sufficient for a second marriage, though the civil law 
should favor it ; for as the Sacred Congregation re- 
plied in 1822, death is not to be presumed from the 
lapse of some years, but must be proven." (Kenr. 
Mor. vol. ii. p. 324.) 

We premise secondly, quoting again 
from the same author : 

" An attempted marriage, when consummated dur- 
ing the lifetime of the legitimate husband or wife, 
constitutes the impediment of crime, if both parties 
are aware of the first marriage." (Kenr. Theol. 
Dogmat. vol. iii. p. 400 ; also Theol. Mor. vol. ii. 
p. 320.) 

292. Applying these two tests to our 
case, we find that Placidia has no moral 
certainty of the death of her former hus- 



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259 



band, as his long absence constitutes but a 
probable conjecture. 

We find, moreover, that she has con- 
tracted the impediment of crime, by at- 
tempting marriage before the priest, both 
parties full well knowing the existence of 
the former wedlock. Hence it follows: 

1 st. That she cannot cohabit with her 
paramour. 

2dly. That, even though it were certainly 
known that her first husband had died, she 
could not marry the guilty lover, without 
previously obtaining a dispensation from 
the impediment of crime. 

293. But, it may be asked, must they 
separate at once, and thus expose their 
children to infamy ? 

If their illicit cohabitation be known in 
the neighborhood, their children will hardly 
be disgraced by the public repentance and 
conversion of the parents. 

Should, however, the affair be a secret, 
we think that they may be permitted to live 
in the same house, due precaution being 
used, provided they can do so continently, 
until some reliable information is obtained 
of the first husband. 



2^0 SECOND PLENARY COUNCIL 

Placidia would, meanwhile, be obliged to 
seek for all possible information. If by 
these means she should acquire a moral 
certainty of the death of her first husband, 
she might then apply for a dispensation 
from the impediment of " crime," which 
though usually granted only with difficulty, 
would no doubt be given on account of the 
children. 

294. It may be observed, however, that 
it is a very rare occurrence that such 
parties should live under the same roof in 
a chaste manner. Nor do such circum- 
stances remain secret for any length of 
time. Hence separation will sometimes 
have to be insisted upon. 

§65. CIVIL LEGISLATION IN THE UNITED 
STATES ON MARRIAGE. 

295. The power of constituting impedi- 
ments belongs exclusively to the Church. 
(Cone. Trid. sess. xxiv.) Kenrick very 
aptly says : 

" It seems to us that such is the nature of matri- 
mony, that in no respect is it subject to the civil 
power, as far as the essence of the contract itself is 



OF BALTIMORE. 



26l 



concerned. The civil government may, however, es- 
tablish certain conditions upon which the civil rights 
of wedlock shall depend, so that no marriage or off- 
spring shall be considered legitimate if the prescrip- 
tions of the law be neglected. For it appears to be 
necessary for the sake of social order, and for an 
equitable and just distribution of rights and duties, 
that it should be possible to recognize and prove a 
marriage in regard to its civil capacity and effects." 
(Kenr. Theol. Dogmat. torn. iii. p. 391.) 

This is primarily said of the marriages 
of infidels ; but, as is evident, applies with 
no less cogency to those of Christians. 

296. The relations of Church and State 
in this matter are thus explained by the 
same author : 

" With us (in America), no controversy exists in 
regard to the power of the Church ; for the simple 
reason that it is restricted " intra forum internum, " 
that is, has no force in law, as our civil tribunals do 
not recognize the laws of the Church, which, however, 
fully obtain in conscience. When marriages are de- 
clared null and void by our civil law, this must be 
understood of the civil effects ; for it is not the in- 
tention of the lawgivers to decide anything in rela- 
tion to spiritual matters, or such as pertain to the 
charge of souls ; especially as by virtue of the Con- 
stitution of the United States the distinction between 
Church and State must be carefully kept in view. 
Nor has the civil power any authority in ecclesias- 



262 SECOND PLENARY COUNCIL 



tical things. Among us, therefore, marriages cele- 
brated according to the laws of the Church, by those 
who are subject to her jurisdiction, are null and void 
when so declared by ecclesiastical lav/ ; so that those 
who should, under the pretext of civil sanction, live to- 
gether as married persons, without having previously 
removed the ecclesiastical impediments, may be de- 
prived of the privileges and communion of the faith- 
ful, and punished with the censures of the Church." 

u On the other hand, marriages that are not recog- 
nized by the civil law, its conditions not having been 
complied with, may be considered valid by the Church, 
if no divine, natural, or ecclesiastical law stands in 
the way." (Kenr. Theol. Dogrn. vol. iii. p. 392.) 

297. The law, in America, requires that 
copies of the various marriage registers 
should be sent annually to the city clerk, 
so that they may be placed on file, in 
order to serve as vouchers in the various 
legal suits that may arise in regard to 
marriages. 

No small number of the clergy have 
doubted whether the civil government has 
a right to demand these copies of church 
registers ; whether the furnishing them 
might not imply authority in the civil 
power to make laws in relation to this 
sacrament. 

Yet we scarcely think that these objec- 



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263 



tions are well taken. The State, as we 
have seen, has undoubtedly the right of 
regulating the civil effects of married life, 
such as the legitimacy of children, inherit- 
ances, and kindred matters. 

Now, to do this, it is clear that a well- 
authenticated and incontrovertible knowl- 
edge of the validity of a matrimonial alli- 
ance is absolutely necessary. 

It may be said, that civil courts can al- 
ways refer to the minister or parochial 
register. Still, this would entail unneces- 
sary delay, and useless labor ; and would 
be withal accompanied with but scanty 
results. 

It seems, therefore, to be just and wise 
that the civil law should demand that the 
records of marriages should be annually 
sent to the proper civil authorities. 

§ 66. PUBLICATION OF BANNS : CASES. 

298. The Fathers of the Council confirm 
the following sanction of the preceding 
Plenary Council of Baltimore : 

" The Fathers hereby ordain that in all the dioceses 
of these States, after the Easter holidays of the year 



264 SECOND PLENARY COUNCIL 



1853, the banns of matrimony shall be published. We 
exhort all ordinaries to grant dispensations only for 
very grave reasons." 

To this the Fathers of the Second Plen- 
ary Council subjoin: 

u This most salutary discipline, which is already in 
existence, we most earnestly desire to remain perma- 
nent." (Cone. Plen. Bait. IL p. 174.) 

299. The Statutes of the Diocese of 
Newark contain the following enactments: 

1 st. Missionaries can dispense with one 
of the three proclamations. 

2d. In all places where mass is said, 
every Sunday, two proclamations of the 
banns should be made, unless a dispensa- 
tion be obtained. 

3d. In those stations where mass is said 
on alternate Sundays only, one publication 
should take place where the parties them- 
selves reside; the other can be made in 
the next mission. 

4th. When persons live more than ten 
miles distant from the church, one procla- 
mation is sufficient ; and it should take 
place in the station nearest to their home, 
or where the pastor resides. 

5th. When the contracting parties live 



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265 



in different missions, the banns should be 
published in both places. 

6th. Dispensations should be asked for 
in writing, and canonical reasons alleged. 
(Statuta, app. i. p. 50, edit. 1869.) 

300. Strangely enough, these wise pre- 
scriptions are but too frequently evaded 
in part, or entirely set aside. The pub- 
lication of the banns is regarded with 
aversion by no small number of the faith- 
ful. They would rather pay any sum of 
money than be " called out." 

And yet, in the publication of the banns, 
the church wishes to confer an honor on 
those who are about to receive this great 
sacrament. We can see no reason why it 
should be celebrated at night, or by stealth. 
Marriage is honorable in all. 

"The law of the publication of the banns 
binds sub gravi." (Gury, De Matrim. n. 734. 
p. 497, edit. Bailer. Romae, 1869.) 

Speaking of this country, Kenrick says: 

l< A pastor, who should omit the publication of the 
banns, would commit a grievous sin, though he were 
certain that no impediment stood in the way." (Kenr. 
Mor. vol. ii. p. 310.) 

Again, he says : 



266 



SECOND PLENARY COUNCIL 



"The banns of ' mixed' marriages should not be 
published in the church, lest thus the ecclesiastical 
authority should seem to approve of them." (Ib.) 

301. Canonical reasons for which a dis- 
pensation may be given, are : 

1st. If there is any danger lest the mar- 
riage should be maliciously impeded. 

2d. Any injury, infamy, or imminent 
scandal that would result from a delay of 
marriage. 

3d. Fear lest a girl, that is pregnant, 
should be abandoned by her lover. 

4th. Ridicule and shame, to which the 
parties might be exposed ; if, for example, 
both are very old ; or one far advanced in 
years, and the other very young. (Gury, 
L c. p. 501.) 

To this, Father Ballerini subjoins : 

"Three things should be borne in mind : 
"1. Both the bishop and the vicar general can del- 
egate the faculty of dispensing with proclamations, to 
others. 

"2. If, in the case of the necessity of immediate 
marriage, the proclamations should have to be made 
afterwards, the marriage itself should not be con- 
summated before the publications have taken place. 

3. " Though no pastor, can 'per se ' dispense with 
the proclamations, as he possesses no power in ' for o 



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267 



externo,' yet, in case of necessity, he may assist at a 
marriage, without having previously published the 
banns, whenever timely recourse to the ordinary is 
impossible. In other words, he may, in certain cases, 
make use of the principle, ' Necessity knows no law.'" 
(Baller. apud Gury, not. a. p. 502, vol. ii.) 

302. We subjoin one or two cases that 
may sometimes occur. 

Sylvanus, a parish priest, is notified by a 
young man of his parish that he wishes to 
get married as soon as possible, but with- 
out being " called out," as his intended is 
already far advanced with child. The pas- 
tor promises to write at once for a dispen- 
sation from the banns, and appoints a cer- 
tain day for the celebration of the marriage. 
But, alas! so many matters were to be at- 
tended to by Sylvanus, as to make him 
altogether oblivious of the dispensation. 
The parties present themselves at the time 
specified, and it is only then that he remem- 
bers the case. After short hesitation, he 
joins them in wedlock. Was his conduct 
reprehensible ? 

We answer, he certainly could, nay, was 
obliged to marry them, when they came, 
as the law is supposed not to be binding 



2 68 SECOND PLENA R Y CO UNCIL 

in such a case. But he should, perhaps, 
have been a little more thoughtful in pro- 
curing the dispensation. 

303. At another time, Sylvanus has a 
similar case in hand. He writes promptly 
for the dispensation, but obtains no answer. 
Again, he marries the couple, taking it 
for granted that his petition was granted. 
Was he correct with regard to his mode 
of action ? 

We reply in the affirmative. At any 
rate, it may safely be assumed that the 
bishop was willing to suspend the law un- 
der such circumstances. The best way to 
obviate these difficulties, is to send one of 
the parties about to be married, to the or- 
dinary for the dispensation. 

304. Finally Sylvanus forgets to publish 
the banns on the first Sunday set down for 
that purpose ; on the following Sunday he 
proclaims them. The parties about to get 
married, thinking that the two publications 
had been made, wish to be united in matri- 
mony forthwith. Sylvanus, in fact, cele- 
brates the marriage, and then makes the 
second proclamation on the Sunday suc- 
ceeding the marriage. 



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269 



It may be asked, therefore : Can the 
publication of the banns sometimes take 
place after the marriage itself has been 
contracted ? We reply in the affirmative. 
This appears certain from the note of 
Ballerini quoted above. Yet there must 
be a necessity for so doing. Was there 
such a necessity in the case referred to ? 
We think there was, as otherwise the con- 
tracting parties would have been exposed 
to no slight inconveniences. 

§ 67. CLANDESTINE MARRIAGES \ DECREE OF 
COUNCIL OF TRENT \ TEACHING OF THE 
SECOND PLENARY COUNCIL OF BALTI- 
MORE : DECISION OF THE PROPAGANDA 
1 ITH REGARD TO CHINA. 

305. We now proceed to explain the last 
part of this chapter of the Second Plenary 
Council of Baltimore. The fathers say : 

" The decree of the Council of Trent regarding 
clandestine marriages, has certainly not been pro- 
mulgated in the greater part of the dioceses in this 
country. The Fathers of the Fifth Council of Balti- 
more thought that it was scarcely expedient to ex- 
tend the decree of the Council of Trent to the other 
parishes in the Diocese of Detroit, beyond those of 



SECOND PLENARY COUXCIL 



the city itself ; nor to any of the other dioceses in the 
United States, except where it is known to be already 
promulgated: and the Holy See should be requested 
to dispense also with it in the city of Detroit itself." 
(Cone. Plen. Bait. II. n. 340, p. 177.) 

306. To this, the Fathers of the Second 
Plenary Council of Baltimore add : 

" As the same state of things still continues to ex- 
ist, we adhere to the above opinion. For many grave 
inconveniences would appear to us inevitable, if the 
presence of the parish priest were necessary to the 
validity of marriage among Catholics. ... In order 
that all doubt may cease, and safety of conscience be 
insured, and at the same time uniformity may exist 
in a matter of such vital importance, it would seem 
to us best, that if possible, the present discipline 
which is almost everywhere prevalent in our midst, 
should, by authority of the Holy See, be introduced 
throughout the land, except in the Province of New 
Orleans.'' (Cone. Plen. Bait. II. p. 177.) 

Rome's answer, however, to this petition 
was : 

" As the Fathers of Baltimore, in tit. v. c. ix. n. 367, 
requested that in all the provinces of the United States, 
except New Orleans, the impediment of clandestinity 
should be declared as abolished, the Most Holy Father 
has thought fit by no means to accede to such a de- 
mand." (Instr. iii. S. C. de Prop. Fid. ap. C. Bait. p. 
cxiv.) 



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271 



307. This question deserves somewhat 
of closer attention. No one will deny that 
the difficulties and perplexities surrounding 
the present discipline are neither few nor 
slight. Both sides of the question, as well 
as the wishes of the Holy See, will best be 
seen from an Instruction of the Holy See 
given in 1821 to the bishops of China, and 
lately also sent to Bishop Baltes, of the 
Diocese of Alton, Illinois. 

The condition of China is similar to that 
of America in this respect, and therefore 
the Holy See applies the same rules to 
both, as is evident from the fact of the 
same Instruction being sent to both coun- 
tries. 

308. We proceed to analyze it. Its main 
points are thus summed up : 

From letters of Chinese missionaries, the 
Sacred Congregation is informed that in 
China the custom prevails of contracting 
marriage according to the laws of the 
Church and Empire, with a second party, 
even when carnal intercourse, preceded by 
a promise of marriage, has taken place 
with a different person. 

Now, according to a Declaration of Pope 



272 SECOND PLENARY COUNCIL. 



Gregory IX., a promise of marriage fol- 
lowed by carnal intercourse constitutes a 
true marriage, and hence the second union, 
though contracted according to all the pre- 
scriptions of the Church and State, is null 
and void, and the parties must be compel- 
led to return to their first betrothed. 

But, replied the missionaries in their let- 
ter to the Sacred Congregation, the people 
were never instructed in any such doctrine ; 
that therefore they were invincibly igno- 
rant of the law ; that it was scarcely prac- 
ticable in future to promulgate it, on ac- 
count of grave difficulties and scandals that 
would doubtless be occasioned by it among 
Christians as well as pagans, all of whom 
firmly believe that no marriage is valid ex- 
cept when celebrated according to the pre- 
scriptions either of the Church or State. 

309. From this statement, the Sacred 
Congregation infers that the following 
doubts may arise : 

1st. Whether in China, where the de- 
cree of the Council of Trent is not yet 
promulgated, a promise of marriage fol- 
lowed by carnal intercourse constitutes a 
true marriage, ..even though the act be 



OF BALTIMORE. 



273 



committed without any marital affection 
or intention, but merely through lust, and 
even when the parties think that they only 
commit fornication, by no means thereby 
contracting marriage, and that therefore 
they are still at liberty to pass to other 
nuptials ; such being the universal per- 
suasion and custom of their countrymen. 

2d. What should be observed by mis- 
sionaries, especially confessors, in regard 
to those faithful who, having made a prom- 
ise of marriage, which was followed by 
sexual intercourse, should contract with a 
different party, thinking the latter to be a 
just and valid marriage. 

3d. Which is the best advice to mis- 
sionaries seeking a means to prevent clan- 
destine marriages and the sad consequences 
following from them ? 

As will be observed, the first doubt con- 
tains the dogmatic question ; the second 
and third refer to its practical bearings. 

310. In reply to the first, the Sacred 
Congregation premises : 

(a) That it can scarcely be supposed 
that all the faithful, without exception, 
should be unaware of the law of the 
18 



274 



SECOND PLENARY COUNCIL 



Church : some may ; but others there 
surely must be who are cognizant of it. 

{&) We must remember the rule which 
Pirhinghius lays down for such cases, 
namely, that " the Church presumes the 
marital intent, as the spouses are sup- 
posed to have excluded sin, and therefore 
to have acted, not as fornicators, but in legit- 
imate wedlock. The bethrothed therefore 
should not be listened to, at least in ' foro 
externo,' in asserting the contrary, though 
in the tribunal of penance, or in ' foro in- 
terno,' this rule does not obtain." 

311. Having premised these two points, 
the Sacred Congregation answers the first 
doubt in the following manner : 

" In places where the decree of the 
Council of Trent is not promulgated, if 
two persons, having promised marriage, 
subsequently have sexual intercourse 
' affectu libidinoso, non autem maritali/ 
such an act does not cause the promise 
of marriage to become a true marriage in 
' foro conscientiae,' or in the tribunal of 
penance and before God ; and hence they 
are at liberty to contract other nuptials, 



OF BALTIMORE. 



275 



provided the previous engagement be dis- 
solved for sufficient reasons. 

" But if such an act be proved in ' foro 
externo/ or before the proper ecclesiasti- 
cal tribunal, they can be compelled by 
ecclesiastical authority to consider each 
other as truly married, and to cohabit in 
consequence." 

312. From this we infer : 

(a) That except in the tribunal of pen- 
ance, or the confessional, the bishop or pas- 
tor, or any other ecclesiastical superior, 
must consider such parties as legitimately 
married, even though they protest that 
they never had any intention of marrying 
when they committed the act. 

{Ji) That even in the confessional, a 
promise of marriage, with subsequent car- 
nal intercourse is, " per se," sufficient evi- 
dence of the marital intent, as it is supposed 
that they wished to avoid sin. 

(c) That, however, if in the confessional 
parties assert that they had no such inten- 
tion, it may be regarded as an evidence 
that marriage was not contracted. 

313. Now, how shall the confessor dis- 



2 y6 SECOND PLENAR Y CO UNCJL 

cern when this marital intent existed, and 
when it did not ? 

The Sacred Congregation, in answer to 
this, says that caution should be used; that 
the confessor should quietly ask the peni- 
tent whether the act was committed with 
any marital affection. If a negative reply 
is given, nothing should be said, as the 
second marriage is valid. 

If, however, an affirmative answer is re- 
turned, he must frankly be told to sepa- 
rate and return to the first spouse, with 
whom the act was committed, and rather 
suffer any punishment than cohabit with 
the second one. 

314. But, how prevent the scandal which 
such a doctrine must cause among the 
people ? 

The Sacred Congregation replied to 
this, that the best advice which could be 
given by the Church was to promulgate 
the Tridentine decree — that when the 
presence of the pastor was not possible, 
two witnesses would be sufficient ; that in 
missionary countries, where the decree 
could be promulgated in its full extent, it 
was merely requisite to contract in presence 



OF BALTIMORE. 



277 



of the missionary priest or quasi pastor, or 
any one else deputed by him, and two or 
three witnesses ; that where it could be but 
partially published, it would be quite suffi- 
cient to contract marriage before two or 
three witnesses, in case the pastor could 
not be present ; under condition, however, 
of receiving ecclesiastical benediction from 
a priest, when occasions should present 
themselves of doing so. The marital 
consent cannot be renewed a second time. 
This, as concludes the Instruction, would 
seem to be the only way by which inordi- 
nate and clandestine marriages can be en- 
tirely cut off with the divine assistance, and 
in which this great sacrament may be rein- 
stated in the pristine dignity which among 
no small number of the faithful it seems to 
have lost. 

is 

§ 68. DECISION IN REGARD TO CHINA 
APPLICABLE IN AMERICA. 

315. Resuming the case for America, 
we see : 

1 st. That in this country, a promise of 
marriage, when followed by carnal inter- 



278 SECOND PLENARY COUNCIL 

course, exercised with marital intent, con- 
stitutes a true marriage ; and hence neither 
the assistance of the parish priest, nor any 
witnesses whatever, are necessary to its 
validity. 

2d. This state of things engenders the 
difficulty of determining the circumstances 
that indicate a marital affection in sexual 
commerce. This embarrassment is height- 
ened by the fact, that in America no less 
than in China, the current opinion seems 
to be, that no marriage is valid except 
when celebrated in the presence of a priest 
or magistrate, and at least two witnesses. 

It may perhaps quite truly be retorted, 
that such an opinion is traceable rather to 
a desire of entering upon the married state 
in the usual honorable and public manner 
prescribed by the laws of Church or State, 
than to a persuasion of invalidity of the 
sacrament. This may be granted in part, 
yet the perplexity still remains. How, we 
repeat it, will the confessor ascertain defi- 
nitely the existence of the marital intent ? 

3d. The third difficulty arises from the 
fact that no small number of persons, hav- 
ing had carnal intercourse after giving a 



OF BAL TIMORE. 



279 



promise of marriage, pass to other nuptials, 
even when there is every reason to believe 
that they acted affectu maritali. As this 
second union is undoubtedly null and void, 
it will be seen that many of those who 
were married according to the ritual of the 
Church or the laws of the State are mere 
concubines. Thus they cohabit not un- 
frequently for twenty or thirty years The 
children who are the offspring of this con- 
cubinage grow up to be young men and 
women. 

After the lapse of so many years, the 
confessor may detect the illegitimacy of 
the attempted wedlock ; and it needs but 
an ordinary amount of perspicacity to see 
what perplexities must follow. 

316. All this is simply the result of the 
non-promulgation of the decree of Trent. 
Is it not, then, very appropriate that the 
Holy See should advise its promulgation 
in America, as the best means of prevent- 
ing illegitimate wedlock, doubts and diffi- 
culties to confessors, and of restoring to 
this great sacrament the honor which it 
seems to have lost among many in this 
country ? 



280 SECOND PLENARY COUNCIL 



317. But let us view the opposite opin- 
ion. We have seen that the Fathers of 
Baltimore are of opinion that our circum- 
stances are such as not to make it expedi- 
ent to promulgate the Tridentine decree, 
since it migdit bring: on a conflict between 
the civil and ecclesiastical authorities. 
These reasons will best be seen from the 
letter of the Bishop of New Orleans to the 
Sacred Congregation, dated April 4th, 1822. 

Its chief points may be summed up 
as follows : many marriages are contracted 
in the Diocese of New Orleans by parties, 
either entirely Catholic, or mixed, that is, 
but one being a Catholic, and the other a 
Protestant, in the presence of the sectarian 
minister, or civil magistrate. 

Now, if it were held that the decree of 
Trent had been promulgated, grave conse- 
quences must follow. 

318. The first difficulty would occur in 
regard to marriages, either mixed or pure- 
ly Catholic, contracted before the Protest- 
ant minister or civil magistrate, as not un- 
frequently happens in this country. 

Such marriages would be void, in cas2 
the promulgation of the decree of Trent 



OF BALTIMORE. 



28l 



must be presumed. Yet the civil law will 
sustain their validity. Hence, a conflict may 
arise between Church and State. For let 
us suppose that one of the parties should 
become penitent, or embrace the Catholic 
faith, while the other should remain either 
impenitent or unconverted to the faith, and 
refuse to renew the consent in presence of 
the pastor and two witnesses, as the Tri- 
dentine decree prescribes : the civil law, in 
this case, could compel the repentant par- 
ty to cohabit with the other, and thus vio- 
late the law of the Church. 

The only means of avoiding any such 
disastrous conflict would appear to the 
bishop (of New Orleans) to be to declare 
the decree as not promulgated. 

319. The Sacred Congregation answers 
these difficulties as follows : 

1st. If both parties are Catholics, they 
must either renew the consent in accord- 
ance with the prescriptions of the Triden- 
tine decree, or separate entirely from each 
other, as the first consent was invalid. 

Should they wish to contract other nup- 
tials after the separation, they must first 
obtain a civil divorce. Nor will they, on 



282 



SECOND PLENARY COUNCIL 



this account, approve the doctrine of civil 
divorce, or actually intend to sever the for- 
mer marriage tie, as none whatever existed ; 
but they will merely make use of the law 
to shield themselves from unjust civil 
annoyances. 

2d. If, however, one party is Catholic, 
and the other Protestant, the difficulty 
vanishes at once, as the Declaration of 
Benedict XIV. pro Hollandia is applicable 
to them. They in no sense come within 
the reach of the Tridentine decree, and 
hence such mixed marriages, when con- 
tracted before the Protestant minister or 
civil magistrate, are valid, even where the 
decree of Trent is promulgated, provided 
the country be not a purely Catholic one. 

Such is the import of the famous De- 
claration of Benedict XIV. for Holland. 

3d. Moreover, the promulgation of the 
decree must be taken for granted, from the 
fact of its having been observed at one 
time in a given place. 

4th. It would be absurd and setting bad 
example to give a general dispensation of 
the decree, even with regard to purely 
Catholic marriages. This request, there- 



OF BALTIMORE. 



283 



fore, must be refused by the Holy See, es- 
pecially as a similar petition of the bishops 
of Canada, in 1764, had been set aside. 

5th. The famous Declaration of Bene- 
dict XIV. extends to marriages only where 
one of the parties is Catholic and the other 
Protestant, or where both are Protestants; 
but in no respect does it comprise mar- 
riages where both are Catholics. (Bened. 
XIV. De Synod. Dioces. lib. 6. cap. 6. 

§ 13.) 

6th. The same holds good of the De- 
clarations of Pius VI. and Pius VII. 

320. From this answer, we perceive that 
the Holy See desires this decree to be pro- 
mulgated throughout the United States. 
At the same time, it is apparent that the 
difficulties attendant on its promulgation 
are easily avoided or overcome, and are 
but slight in comparison with the uncertain- 
ty and unsettled state of conscience occa- 
sioned by its non-promulgation. 

To understand this question more thor- 
oughly, it may not be amiss to consider 
what is meant in this country by a promise 
of marriage. 



284 



SECOND PLENARY COUNCIL 



§ 69. BETROTHALS. 

321. A promise of marriage or betrothal 
is defined : 

" An espousal or betrothal is a declaration and 
mutual promise of future marriage." (Kenr. Theol. 
Mor. vol. ii. tract, xxi. cap. i. p. 279.) 

This promise must be based upon a 
true consent, that is, a sincere intention 
of binding oneself by the declaration, 
given externally. Hence a promise made 
without sufficient deliberation, or serious 
thought of contracting the obligation, is 
simply no promise of marriage at all, in the 
canonical sense of the term. 

No doubt, many such rash and inconsid- 
erate promises are exchanged among young 
people, and are followed by sexual inter- 
course. In these cases, there was no ca- 
nonical betrothal, and consequently no 
marriage. 

It is, then, important to know whether 
such promises are of a serious nature, or 
whether they are but the effect of moment- 
ary excitement. 

Nor is it sufficient that these conditions 



OF BALTIMORE. 



285 



should be fulfilled by one of the parties 
only ; they must be complied with by both. 
An " engagement," therefore, or promise 
of marriage, must be : 

1st. Sincere. 

2d. Mutual. 

3d. Deliberate. 

4th. Legitimate, that is, not contrary to 
law. 

322. The canonical effects of a legitimate 
promise of marriage are: 

1 st. Such a promise, when followed by 
carnal intercourse, exercised affectu mari- 
tali, which is to be presumed, passes into a 
valid and true marriage. 

2d. It induces a grave obligation of 
marriage. For, as Innocent II L says, 
" those who recede from their promise 
without weighty reasons, commit sin by 
breaking their word in so important a 
matter, thus exposing to imminent risk the 
good name of the other party concerned." 
(Apud Kenr. Mor. vol. ii. p. 282.) 

3d. " The impediment ' publicae hones- 
tatis,' which extends to the first degree of 
consanguinity only, is thereby contracted. 
Any special form of words is not neces- 



286 



SECOND- PLENA RY CO UNCIL 



sary to a valid ' engagement.' All that is 
required is that the words should express 
the mutual consent or promise of marriage. 
Before the Council of Trent, a specified 
formula was indispensable." (Walt. § 296, 
p. 582.) 

323. Nor is any solemnity essential. A 
simple promise, without any ceremonies or 
witnesses, and without the giving of pres- 
ents, is quite enough to constitute a legiti- 
mate promise of marriage. 

Hence, what we call in this country 
an " engagement," though generally made 
without any formality whatever, obtains 
fully in canon law. 

In Europe, the customary solemnities 
are generally observed ; while in America 
this laudable usage is but rarely followed. 

Canonists sometimes call marriage it- 
self by the name of " sponsalia de prae- 
senti," while the promise is termed spon- 
salia de futuro. 

324. From this short glance, it will be 
seen how difficult a confessors position is in 
the present state of affairs. For, first of all, it 
is in many cases no easy task to determine 
whether a promise of marriage contains all 



OF BA L TIM ORE. 287 

the elements required by the law of the 
Church to make it a valid engagement. 

Secondly, even supposing a proper be- 
trothal to have taken place, it is still very 
hard to ascertain whether the subsequent 
carnal act was exercised affectu maritali, 
or whether it was simply fornication. 

Thirdly, all this is rendered still more 
intricate and perplexing by the fact that 
our present discipline is but partially and 
imperfectly known by the people. Hence 
scruples and false consciences are easily 
engendered. 

325. Of the publication of the decree 
of the Council of Trent on clandestine 
marriages, Kenrick says : 

" The Tridentine decree on clandestine marriages 
is promulgated throughout the whole of Italy, Spain, 
France, and Ireland, as also in many other places. 
But only at a later date, namely, on Dec. 2, 1827, was 
it published in the Diocese of Dublin and several 
other dioceses of Ireland." (Kenr. Mor. vol. i. tract, 
xxi. De Matr. c. v.) 

In this quotation, Kenrick appears to as- 
sume that the Tridentine decree, which was 
introduced into the Diocese of Dublin in 
1827, had already been previously promul- 
gated in the other parts of Ireland. 



288 



SECOND PLENA K Y C O UNCIL 



326. We would also call attention to 
various abuses that result from the non- 
promulgation of this law in the United 
States. * 

It has not unfrequently occurred, that 
parties wishing to get married, even when 
impediments stood in the way, went to the 
pastor of a different parish, and deceiving 
the priest, who knew them not, got mar- 
ried by him. Now the Tridentine decree 
enacts that no marriage shall be valid that 
is not contracted in the presence of the 
pastor either of the bride or bridegroom. 
Hence no one can be validly married by 
any one but his own parish priest.t 

* Ken rick thus speaks : 

" In the greater part of the United States, no vestige of the 
publication of the Tridentine decree exists ; wherefore marriages 
entered into by the sole consent of the contracting parties, with- 
out the presence of the pastor or other priest or witnesses, are 
valid, as may be inferred from responses of the Sacred Inquisi- 
tion to the Bishop of Quebec." (Kenr. ii. Mor. p. 331.) 

f With regard to marriages of strangers, the same author 
says : 

M In this country, whither strangers flock from all parts of the 
globe, going from one State to another, the law can scarcely be 
vigorously earned into effect. As a general rule, no document 
concerning their condition of life is extant ; nor is there a way 
of finding out whether these strangers are single or married, ex- 
cept by the sworn affirmation of the parties themselves, or by the 
testimony of others who know them. Even when this point is 
satisfactorily settled, care must also be taken not to marry per- 



OF BALTIMORE. 



This, it seems, would be a powerful 
means of putting a stop to the above 
abuse. This reasoning applies with equal 
force to marriages performed by ministers 
and magistrates. When Catholics once 
understand that such marriages are not 
only illicit but invalid, and of no effect 
whatever, they will more readily shrink 
from profaning this great sacrament.* 

The objection sometimes made, that we 
have no canonically instituted parishes, is 
of no account, as it is not necessary that 
these should exist where the Tridentine 
decree is promulgated. Such is a brief 

sons belonging to another parish ; for any priest, whether regular 
or secular, uniting in marriage parishioners not his own, incurs 
suspension, durable at the will of the ordinary of the parish." 
(Kenr. 1. c. p. 331, ex deer. S. C. die 14 Aug. 1627.) 
* The Council of Trent says : 

" And whereas it (C. Trent) takes into account the grievous 
sins which arise from the said clandestine marriages, and espe- 
cially the sins of those parties who live on in a state of damnation, 
when, having left their former wife, with whom they had con- 
tracted marriage secretly, they publicly marry another, and with 
her live in perpetual adultery. . . . Those who shall attempt to 
contract marriage otherwise than in the presence of the parish 
priest, or of some other priest by permission of the said parish 
priest, or of the ordinary, and in the presence of two or three 
witnesses ; the Holy Synod renders such wholly incapable of 
thus contracting, and declares such contracts invalid and null, 
as by the present decree it invalidates and annuls them." (Sess. 
xxiv. chap. i. on Reform.) 

*9 



SECOND PLENARY COUNCIL 



summary of the arguments tending to 
show that the promulgation of the decree 
of Trent is not only possible, but extreme- 
ly desirable, if not morally necessary, in 
America. 



OF BALTIMORE. 



29I 



CHAPTER XXII. 

On the Sacrifice of the Mass. 

See Cone. Plen. Bait. II. tit. vi. De Cultu Div. cap. i. : Ken- 
rick, Mor. vol. i. p. 230 : Gury, Mor. edit. Ball. not. ad 
torn. ii. § 361. p. 210. 

§ 70. OBLIGATION OF OFFERING UP MASS 
ON SUNDAYS AND FESTIVALS FOR THE 
PEOPLE. 

327. Pastors are, as a general rule, 
obliged to apply mass for their flocks on 
Sundays and holidays. The Fathers of 
Baltimore state that this obligation was 
more especially explained and confirmed 
by Benedict XIV. in the constitution " Cum 
semper oblatas," in which it is clearly and 
openly set forth and decreed, that parish 
priests and others actually having the care 
of souls, are bound to offer up the sacrifice 
of mass for the people confided to them, on 
Sundays and holidays. (Ap. Cone. Plen. 
Bait. II. n. 366.) 



SECOND PLENARY COUNCIL 



From these words Kenrick infers " that 
missionary priests, having charge of souls 
as quasi pastors, are undoubtedly obliged 
to apply mass for their people, on the days 
above specified." (Kenr. Mor. vol. i. tract, 
viii. p. 230.) 

Our great American theologian, it would 
appear, does not think that the constitution 
of Benedict XIV., " Cum semper," August 
19th, 1744, extends merely to places where 
the Council of Trent is promulgated, and 
where parishes consequently are canonical- 
ly established. Yet the affirmative opinion, 
which holds that the above constitution ap- 
plies to places only in which the Sacred 
Council of Trent obtains, is now beyond 
doubt. 

As no canonical parishes exist in Amer- 
ica, Kenrick's inference cannot be main- 
tained. He seems to have been led into 
his opinion by the words, " all priests 
actually having the care of souls," are 
obliged to offer up for their flocks ; which 
is no doubt true in canonically established 
parishes. For it is the avowed object of 
the constitution of Benedict XIV. to com- 
prise in this obligation not only pastors 



OF BALTIMORE. 



293 



themselves, but also temporary vicars, that 
is, those also who, though not being ca- 
nonically appointed pastors, yet take their 
places for a time, until pastors are nomi- 
nated, thus having actually charge of souls. 

328. The Fathers of Baltimore put the 
question appropriately thus : 

"As the Sacred Congregation of the Propagation 
of the Faith, in answer to certain doubts lately pro- 
posed in regard to the application of masses, has de- 
cided that missionaries who have charge of souls in 
some determinate and fixed district, are bound neither 
in justice nor in charity to apply mass for the people 
on holidays, the Fathers have thought it proper to 
request this S. Congregation more fully to explain its 
opinion, and signify whether the aforesaid response 
comprises the missionaries of this country, where ca- 
nonically erected parishes do not yet exist." (C. Bait, 
n. 368. p. 190.) 

The answer of the Holy See, given Aug. 
18, 1866, was as follows: 

" 1, An vicarii apostolici ac missionarii, qui quovis 
modocuram animarum in certo aliquo loco assumunt, 
omnes indistincte obligentur ex justitia ad applican- 
dam missam pro populo in diebus festivis. 

" 2. An vero de illis, qui ex justitia non obligantur, 
dici debeat c decere ' ex charitate, aut 6 teneri ' ex 
charitate, ad applicandam missam pro populo in die- 
bus festivis. 



294 



SECOND PLENA R Y COUNCIL 



"Jam vero cum de his quaestionibus actum fuerit in 
generalibus comitiis eyusdem S. Congregationis hab- 
itis die 23 Martii anni 1863, Emi., Patres responden- 
dum censuerunt : 

" 6 Ad 1. Negative, dummodo non agatur de locis in 
quibus sedes episcopales ac parceciae canonice erectae 
jam sint, atque ad eas vicarii apostolici ac missionarii 
missi sint ut legitimorum pastorum vices gerant.' 

"Ad 2. Vitandam esse locutionem teneri ex chari- 
tate, dicendum vero esse, decere ex charitate, idque 
ita.ut nulla proprie dictae obligationis significatio ap- 
pareat." Datum Romae . . . die 18 Augusti, anno 
1866." (Apud Cone. Bait. p. cxlviii.) 

329. From this decree, it follows: 

1 st. That pastors in this country are 

bound neither in justice nor in charity to 

offer up mass for their people on holidays, 

though it is becoming to do so. 

2d. That by the terms " diebus festivis " 

are meant " all Sundays " and festivals of 

precept. 

3d. This obligation is local, not personal. 
Hence missionary priests assuming charge 
of souls in a canonically established parish 
are obliged to apply mass for the people. 

We remark, however, that formerly the 
S. Congregation had decided that mission- 
aries were bound to offer up the sacrifice 
of the mass for their people on holidays, 



OF BALTIMORE, 



295 



not indeed in justice, but in strict charity, 
that is to say, under pain of mortal sin. 
In 1862, however, the words " it is becom- 
ing in charity " were substituted for the for- 
mer, "it is obligatory in charity." (Baller. 
not. ad Gury, torn. ii. 210. 

§ 71. STIPEND OF MASS. 

330. The next question to be treated is, 
can priests having charge of souls as quasi 
pastors, receive a stipend for one mass 
celebrated on a Sunday or holiday of 
obligation. 

We answer in the affirmative. For, un- 
less there be some positive law forbidding 
it, missionaries may certainly receive a sti- 
pend on Sundays as well as on other days. 

Now, does any such prohibition exist ? 
We think not. 

The Fathers of Baltimore say : 

"An equitable stipend or offering may lawfully be 
received for the celebration of a mass, which the priest 
is at liberty to offer up as he chooses : for this stipend 
is not given as a price or compensation for the mass 
itself, but merely for the support of the celebrant." 
(Cone. Plen. Bait. II. n. 369, p. 190.) 



2 g6 SECOND PLENARY COUNCIL 

331. Again, they continue thus: 

" But as regards the exact amount of offering to be 
determined by the bishop, no universal rule can be 
laid down in these States, extending over such immense 
tracts of land." (Ib.) 

In most of the States, the offering, as 
fixed by custom or episcopal sanction, is 
one dollar in currency. 

a By law or custom," says Kenrick, " the stipend 
of mass with us is a half-dollar, that is, fifty cents." 
(Mor. vol. ii. p. 167.) 

This was the alms before the war, when 
no inflated and depreciated money yet 
existed. Now, it has been raised almost 
everywhere to one dollar. 

From all this, no one can deduce any 
prohibition against receiving a stipend for 
one mass on Sundays and festivals. 

322. But it may be objected that the 
Sacred Congregation of Rites, in a decree 
dated September 25, 1858, directs "that 
priests who celebrate two masses on Sun- 
days and festivals, even when obliged to say 
one mass for the people on those days, are 
not bound to apply both masses for their 
parishes; yet neither can they receive a 



OF BALTIMORE. 



297 



stipend for the second mass." (Kenr. Mor. 
vol. i. p. 230.) 

This decree, however, if it prove any- 
thing at all, must confirm our thesis. For 
it enacts that no stipend can be accepted 
for the second mass by priests "who are 
obliged " to offer up one mass for the people 
on the above days. Now, as we have seen, 
in America, priests are not bound either in 
justice or in charity to apply mass for the 
people on holidays. Hence they by no 
means come within the reach of the de- 
cree. Its object is to prevent a spirit of 
filthy lucre from creeping into so sacred a 
mystery. Hence it ordains that two sti- 
pends should not be received for two 
masses celebrated on one day. 

It is equally apparent from the above 
decree, that while missionaries in this 
country are not inhibited from receiving 
a stipend for one mass on Sundays and 
festivals, yet they cannot accept of two 
stipends, one, namely, for each mass. 

333. This conclusion is corroborated by 
the opinion of most theologians, " that if a 
canonically installed pastor should depute 
a vicar or assistant priest to celebrate mass 



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for tne people on festivals, the latter is en- 
titled to a stipend from the pastor." (Gury, 
torn. ii. § 363. p. 210.) 

But, if those priests who are not bound 
to offer up for the people can receive a 
stipend on Sundays and festivals, why- 
should not missionaries in this country 
be entitled to the same privilege ? 

Nor would it even be a venial sin to ac- 
cept of a stipend, as there is no obligation 
whatever of offering mass for the people on 
the above days. The contrary is simply a 
matter of counsel. (Baller. not. ad Gury, 
torn. ii. p. 210.) 

334. Our conclusion then is, that priests 
having charge of souls in this country can 
receive a stipend for one mass on Sundays 
and holidays of obligation. Stipends for 
both cannot be accepted by them, as is 
apparent from the decree given above. 
No doubt it is fitting and commendable 
that all pastors should celebrate frequently 
for the wants of their flocks. A zealous 
missionary will need no law forcing him so 
to act. But, for the present, we must not 
forget the distinction between what is 
obligatory and what is laudable. 



OF BALTIMORE. 



299 



§ 72. FOUNDATIONS FOR PERPETUAL MASSES. 

335. The Fathers of Baltimore very op- 
portunely call attention to another matter : 

" We cannot but declare that it is an intolerable 
abuse and profanation of sacred things, that, as has 
already several times occurred, public and frequent 
invitations to foundations of perpetual masses should 
be inserted for several months in public newspa- 
pers, among secular matters." (Cone. Plen. Bait. II. 
n. 370.) 

This would seem indeed to be an excel- 
lent decree. A great anxiety for building 
churches, entirely too expensive, has induced 
some to appeal for assistance to the public 
through newspaper advertisements, prom* 
ising to have masses said perpetually for 
the benefactors. This may be harmless in 
itself. Yet such newspaper advertisements 
do not seem calculated to preserve the dig- 
nity of so great a sacrifice. 

336. However, it is said that this rule 
is entirely disregarded, not only by priests, 
but by bishops themselves. Thus we read 
the following in the pages of the New York 
Freeman's Journal, Sept. 13, 1873 : 



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"A Casus Conscientle." 

" A Rev. correspondent in Wisconsin writes us, as 
a friend, to know how we reconcile it to our known 
obedience to law, to publish in our columns advertise- 
ments of i perpetual masses/ by this or that fully re- 
sponsible body, notwithstanding the decrees of the 
Plenary Council of Baltimore held in 1866. 

" In response, we say, that the published Acts and 
Decrees of the Plenary Council of Baltimore, a. d. 
1866, form a very handsome volume. Not only that 
— we keep it as a book of reference — and marvel very 
much at seeing how utterly it is disregarded in mat- 
ters in which it were much for Catholic edification 
that its prescriptions should be observed. When we 
first received it, we supposed that it was to be law for 
the Catholics of the United States. 

u We accordingly w 7 rote to a venerable religious 
monastery, saying that we must discontinue its adver- 
tisement — of the very kind our correspondent speaks 
of. We received, in due time, a letter certifying that 
the bishop of the diocese where this monastery was, 
sanctioned its publication in our columns. Right on 
the head of this, the bishop of another diocese sent us, 
under his own hand, personally known to us, an ad- 
vertisement of the same identical character. As to 
our individual conscience ... we suspended their 
publication for a moment, supposing that it was or- 
dered by our ecclesiastical superiors. . . . When we 
found some of our bishops disregarding the prescrip- 
tion, and when we saw, right and left, that the hand- 
some Acts and Decrees of the Second Plenary Council 
was put on the shelf — after the best advice we could 



OF BALTIMORE. 



301 



reach being taken — we resumed the publication of 
what we considered very good for the souls of Catholics. 

"We did it in good faith, and with a very clear 
conscience. When our Most Rev, Prelates consider 
it good to enforce 6 all' the acts and decrees of the 
Plenary Council of Baltimore of 1866, they will begin 
by observing them themselves. We will then humbly 
follow their example ' ad amussim.' " 

The following is part of a sample of 
some of these advertisements : 

"U. J. O. G. D. 

" To all the friends of Jesus in the Bl. Sacrament. 

" But wishing besides to prove to our benefactors 

our personal gratitude, we, the religious of St. 

Abbey, take for ourselves and successors the follow- 
ing engagements : 

" 1. For each person offering five dollars, we shall 
say one mass immediately, and one after his or her 
death, when the receipt handed for the gift is sent 
hither. 

" 2. For each person offering twenty-five dollars, 
we shall say two masses immediately, and three after 
his or her death. 

" 3. For each person offering one hundred dollars, 
we shall say five masses immediately, and henceforth 
one every year as long as the monastery shall exist. 

"4. For each person offering five hundred dollars, 
we shall sing one high mass immediately, and one 
every year hereafter, and his or her name shall be 
placed in the Mortuary or list of the benefactors 
which is publicly recited every day after prime." 



302 SECOND PLENARY COUNCIL 



CHAPTER XXIII. 

On Benediction of the Blessed Sacrament 
and Forty Hours' Devotion. 

See Cone. Plen. Bait. II. 1. c. cap. ii. n. 374 : Benedict XIV. 
Instit. xlviii. p. 226, edit. Prati, 1846. 

§ 73. CONDITIONS OF GAINING THE INDUL- 
GENCES ! HOLY COMMUNION : TIME OF 
RECEIVING IT. 

337. We ask : 

1 st. How often is Benediction of the 
Blessed Sacrament allowed in the ordinary 
parish churches of this country ? 

2d. What are the conditions of gaining 
the plenary Indulgences ? 

3d. Is it sufficient to go to confession on 
Saturday, and receive holy communion on 
Sunday at the early mass, preceding the 
mass of exposition ? 

338. In answer to the first question, we 
quote from the Fathers of Baltimore : 

" Whereas the Church has not defined by the com- 



OF BAL TIM ORE. 



303 



mon law, but rather left it to be determined by the 
bishops, how frequently, considering the circumstances 
of place, as well as the spiritual wants of the faithful, 
the Blessed Sacrament might usefully be exposed to 
the adoration of the faithful, we being desirous of aug- 
menting their devotion toward this most venerable 
sacrament, . . . have determined that the exposition 
and benediction of the most holy sacrament may take 
place once a day only, in all churches and chapels of 
monasteries, and religious communities, on every Sun- 
day of the year, on all holidays of obligation, or also 
on feasts merely of devotion, of the first and second 
class. . . . During the octave of Corpus Christi, how- 
ever, solemn benediction may be given at the high 
mass and at vespers. 

k< It shall be allowed, moreover, to give solemn bene- 
diction twice a week during Lent ; on each day of a 
holy mission : on the feast of the Sacred Heart of 
Jesus, and during the Devotion of the Forty Hours; 
also on other days that may be designated by the ordi- 
nary.'* (Cone. Plen. Bait. II. n. 375, p. 194.) 

339. In conformity with this prescription, 
the Statutes of the Diocese of Newark 
contain the following regulations : 

"We grant that besides the days named by the 
Council of Baltimore, No. 375, the venerable sacra- 
ment may be exposed, and solemn benediction given 
on all Sundays and feasts of our Lord Jesus Christ, 
on the principal feasts of the Blessed Virgin Mary, 
on all days within the octave of Corpus Christi; also 



3°4 



SECOND PLENARY COUNCIL 



after the Devotion of the Stations of the Cross ; at the 
end of public novenas ; on the first and Jast days of 
May, and whenever the rules of approved confraterni- 
ties prescribe it." (Statuta Dioc. Novarc. § 20. p. 31. 
edit. 1869.) 

340. The conditions of gaining the plen- 
ary indulgence of the Forty Hours' Devo- 
tion are : 

1 st. To receive the sacraments of pen- 
ance and holy eucharist. 

2d. To visit the church where the Blessed 
Sacrament is exposed, once each day of the 
adoration. 

3d. To recite during each visit a short 
prayer, saying five times the Lord's Prayer 
and the Hail Mary, according to the inten- 
tion of the Holy Father. 

341. Some questions on this head have 
already been answered by us, when speak- 
ing of indulgences. We there proved from 
the works of Benedict XIV. that the in- 
dulgence of the Forty Flours' adoration is 
gained by one who goes to confession on 
Saturday, and receives holy communion 
on Sunday at the early mass preceding 
the exposition. 



OF BALTIMORE. 



305 



In addition, we would say that confession 
is required, 

(a) Either as a means of obtaining the 
state of grace which is essential in order to 
gain any indulgence ; or 

(b) As part of the conditions to be ful- 
filled. 

In the first case, confession is not neces- 
sary at all for one already in the state of 
grace ; in the second, it is essential inde- 
pendently of the state of grace. 

But in neither case is it indispensable 
that the confession should be made after 
the exposition has actually begun, or dur- 
ing its continuance. 

342. To the parallel case given already, 
we subjoin a similar one taken from the 
same part of the works of Benedict XIV. 

A plenary indulgence was granted by 
Paul V. to all taking part in the procession 
of the Rosary society on the first Sunday 
of each month. Now, those processions 
are held so early, in some places, that the 
faithful cannot receive communion before 
they take place. Benedict XIV., being 
consulted on the case, decided that it was 
sufficient for penitents to be reconciled to 
20 



306 SECOND PLENARY COUNCIL 



God in the sacrament of penance, with the 
view of gaining the indulgence of the pro- 
cession, and receive the blessed eucharist 
on the same day. 

343. Evidently the same principles ap- 
ply to our case. It is therefore perfectly 
certain that the indulgence of the Devotion 
of the Forty Hours may be gained by re- 
ceiving holy communion at the early mass 
preceding the mass of the exposition; pro- 
vided, however, it be done with the view 
of gaining the indulgence. 

The difficulty, it will be remembered, 
arises from the clause " qui vere pceni- 
tentes et confessi, et sacra communione re- 
fecti, ecclesiam visilaverint, in qua sacra 
eucharistia publice cultui exposita est." 
(Cone. Plen. Bait. 1. c.) 

It therefore supposes, if anything, that 
both confession and communion should 
precede the exposition, or at least the ado- 
rations. 

The only question in reality we find 
discussed by Benedict XIV. is, whether 
confession and communion may be per- 
formed after the other actions that are 
prescribed. He seems to take it for 



OF BA L TIM ORE. 



307 



granted that they may, nay, should go be- 
fore the other works, being preparatory 
dispositions. 

344. Such also is the general impression 
and custom of the faithful, confirmed by 
the tacit consent of the bishops. Besides, 
it would otherwise be very difficult for 
many to gain the indulgence at all. They 
could scarcely leave off their work to 
go to confession and communion on a 
weekday. Now it can hardly be supposed, 
as the great pontiff Benedict XIV. ob- 
serves, that the Pope should wish to 
exclude all those from the possibility of 
obtaining the indulgence. Neither is it 
necessary to receive these sacraments in 
the church where the exposition is going 
on, as it is merely prescribed to make the 
visits there. 



308 SECOND PLENARY COUNCIL 



CHAPTER XXIV. 

On Uniformity of Discipline. 

See Instr. ii. Prop. Fid. apud Cone. Plen. Bait. II. p. cxliv. : 
Kenrick, Mor. vol. i. tract, iv. De Leg. cap. i. p. 125. 

§ 74. OBSERVANCE OF LENT IN THE 
UNITED STATES. 

345. As regards the observance of Lent, 
some difference of custom exists in the 
various dioceses of this country. Thus, in 
most of the Western dioceses, the Satur- 
days of Lent are not days of abstinence 
from flesh meat, while they are in most of 
the Eastern States. 

Nor would the Holy See, when requested 
by the late Plenary Council of Baltimore 
to grant a universal dispensation for the 
Saturdays of Lent, consent to do so, wish- 
ing that each bishop should apply in par- 
ticular, and expose the reasons for the 
petition. (Instr. iii. 1. c.) 



OF BAL TIMORE. 



309 



Hence it is not in the power of any 
bishop to give a dispensation from flesh 
meat on Saturdays in Lent, wherever the 
contrary custom prevails. 

That in this country this dispensation 
would be desirable, nay, almost necessa- 
ry, arises from the difficulty of obtaining 
proper Lenten food, especially by the poor 
and hard-working classes. For them it 
may be said to be morally impossible to 
abstain from flesh meat three days during 
each week of Lent. 

Practically speaking, no small number 
of them are excused from this precept on 
account of hard labor. 

346. What are called " ova et lacticinia " 
are permitted in the United States ; and 
eggs, milk, and butter or cheese can be 
used both in the morning and evening, 
provided due quantity be observed. (Kenr. 
Mor. vol. i. p. 134.) 

" This privilege," this author further 
says, " exists by permission of the bishops, 
to whom the faculty of dispensing from 
eggs and milk is granted by the Apostolic 
See." (Ib. p. 137.) 

Again, continues Kenrick, " those who, 



SECOND PLENARY COUNCIL 



on account of hard labor or old age, are 
excused from fasting, can eat meat at each 
meal on those days on which, by episcopal 
indult, others are allowed to eat it but once 
a day, namely, at the principal meal." (S. 
Poenit. 1 6 Jan. 1834, ap. Kenr. Mor. vol. 
L p. 137.) 

347. Finally, we add the salutary advice 
of Kenrick, namely, " that few in this 
country are obliged to fast. For most 
people have to work hard either on farms 
or in factories. This holds good, especial- 
ly as Lenten food is costly and cannot easily 
be purchased by the poor ; and the pro- 
duce of American soil does not contain 
the same quantity of nutriment as else- 
where. Hence missionary priests should 
be careful not to be too strict in urging 
this obligation, lest they cause the faithful 
to commit sin from an erroneous con- 
science. " (Kenr. 1. c.) 

§ 75. OBLIGATION OF RESTING FROM SER- 
VILE LABOR AND OF HEARING MASS ON 
HOLIDAYS. 

348. No less variety of custom obtains 
in regard to holidays of obligation. In 



OF BAL TIMOR E. 3 ! x 

most dioceses eight are observed, viz. 
the Nativity of our Blessed Lord, Cir- 
cumcision, Epiphany, Ascension, Corpus 
Christi, Annunciation, Immaculate Con- 
ception, and the feast of " All Saints." 

It may be asked whether with us it is 
obligatory to hear mass and rest from ser- 
vile labor on these holidays ? 

We answer, that all over the United 
States, the obligation of resting from ser- 
vile labor would practically appear to lie 
in abeyance, as very few indeed observe it. 
The bishops may be said tacitly to give 
their approbation by not forbidding this 
violation of the law. 

Thus, the Statutes of the Diocese of 
Newark say : 

u It were desirable, indeed, that holidays should be 
carefully observed among us. But as it is difficult 
to abstain from servile labor, especially for those who 
depend on Protestant employers, earnest endeavors 
should be made to induce the faithful at least to as- 
sist at one mass on those days, if they occur during 
the week. And therefore missionaries, in order to 
satisfy the devotion of the faithful, should, if possible, 
say at least one mass, early in the morning. Let them 
admonish the people to attend to their labor, not of 
their own accord, but by permission of the priest. In 



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SECOND PLENARY COUNCIL 



cities, and in other places where a pastor resides, 
divine service should take place in the same manner 
as on Sundays, even though but a small number of 
the faithful be present." (Statut. Dioc. Novarc. cap. 
iv. § 6. p. 44. 

Kenrick maintains the same opinion. 
" But in this country," he says, " causes 
may easily arise on account of which those 
are excused who do not strictly keep holi- 
days." (Kenr. Mor. vol. i. p. 125.) 

From what has been said it is apparent 
that no general dispensation from the due 
celebration of festivals exists ; that " per 
se," therefore, we are bound to keep them 
in the strict sense of the term. We are 
excused by the law, common to all coun- 
tries, either of physical or moral impossi- 
bility ; singly, not collectively. 

In the dioceses of New Orleans, St. 
Louis, Mobile, Vincennes, Dubuque, Little 
Rock, and Chicago, the feasts of Circum- 
cision, Epiphany, Annunciation, and Cor- 
pus Christi are not holidays of obligation. 

349. As regards the precept of abstain- 
ing from servile labor, it would seem in 
many cases morally impossible to comply 
with it, for the reasons already indicated. 



OF BALTIMORE, 



313 



Is this also the case with the hearing of 
mass ? 

As the precept of observing holidays is 
itself divisible, so that one part may be 
complied with, irrespectively of the other, 
we think that the obligation of hearing 
mass may sometimes remain, when that of 
resting from servile labor has ceased. Yet 
even here, many reasons will tend to take 
away the stringency of the precept. As a 
general rule, labor in factories begins at 
so early an hour in the morning, as to ren- 
der it no slight inconvenience for Catho- 
lics previously to hear mass, especially 
when they live at some distance from the 
church. 

In scattered places, therefore, they seem, 
for the greater part, to be excused from 
the obligation of hearing mass ; whilst in 
cities they ought to assist at it. Hence we 
should say that in cities an early mass ought 
to be said, and a second one at a later hour ; 
while in country places one late mass suf- 
fices. 

350. In Louisiana and the above-men- 
tioned dioceses, only four holidays exist : 
the Nativity and Ascension of our Blessed 



3 1 4 SECOND PLENAR Y CO UNCIL 

Lord, the Assumption of the Blessed Vir- 
gin, and " All Saints." The Council of 
Baltimore requested the Holy See to make 
the feast of the Immaculate Conception a 
holiday of precept throughout the United 
States, which petition was granted. 



OF BALTIMORE. 



315 



CHAPTER XXV. 

On Dispensations and Ecclesiastical 
Burials. 

Cone. Plen. Bait. II. n. 385. p. 200 seq. : Instr. Sacr. Cong. 
Prop. Fid. apud Cone. Plen. Bait. II. : Statuta Dioc. 
Novarc. cap. iv. 

§ 76. LEVY OR TAX ON DISPENSATIONS, 

351. It may be asked : 

1 st. Can a fixed fee be levied by the or- 
dinary for dispensations ? 

2d. What rule should be observed in re- 
gard to burials, in places where no Catholic 
cemetery exists, as also when parties wish 
to inter deceased relatives in non-Catholic 
cemeteries where Catholic burying-grounds 
are already set apart ? 

In reply to the first question, we need 
scarcely premise that bishops cannot, jure 
ordinario, dispense with impediments of 
marriage ; these being general laws of the 
Church, and consequently beyond the juris- 
diction of any particular bishop. 



316 



SECOND PLENARY COUNCIL 



It may, however, be observed that by 
custom some of the minor impediments 
are relaxed by bishops, even jure ordina- 
rio, or, as canonists say, jure quasi ordi- 
nario. 

As bishops, therefore, receive these 
faculties from the Holy See, their dispen- 
sations are void when given for insufficient 
reasons. 

352. Again, is it conformable to eccle- 
siastical law to demand a fixed tax for 
dispensations ? 

In reply, we translate the response of the 
Sacred Congregation to the Fathers of 
Baltimore, which is as follows: 

" As the eminent cardinals perceive, that notwith- 
standing the express prohibitions of the Holy See, 
contained in the - Formula of Faculties/ it was never- 
theless disputed among the Fathers of Baltimore, 
whether in granting dispensations of marriage, cer- 
tain fixed sums should be demanded, and especially 
as the same eminent cardinals have reason to believe 
that, as a matter of fact, such determinate taxes are 
exacted in some countries, they thereby inculcate on 
the bishops of such places the observance of said 
prescription, according to which no money can be 
received, under any title or pretence, for dispensations 
of impediments of marriage." (Instr. ii. Prop. Fid. 
ad 3m. ap. Cone. Plen. Bait. II.) 



OF BALTIMORE. 



317 



In the Formula of Faculties given to 
bishops, this is still more explicitly en- 
joined : 

" His Eminence," these are the words, " wishes and 
strictly commands that the respective bishops should 
make use of these faculties for most urgent reasons 
only, and then it should be gratis, imposing, however, 
some suitable alms, to be applied for charitable pur- 
poses." 

353. Now, as the editor of the Council 
of Baltimore observes in a note, page 201, 
" an alms does not mean a fixed sum of 
money to be given by all alike, but simply 
what each one can easily contribute, con- 
sidering his position and means." 

It would then seem to be beyond doubt 
that no fixed sum can be set down for any 
dispensation. The bishop however, may 
suggest the amount of alms, to vary ac- 
cording to the circumstances and means 
of the petitioners. 

We should rather be anxious to avoid 
even the shadow of avarice or simony. 
Wherever, therefore, an alms is enjoined 
for a dispensation, it should be distinctly 
understood that the money is not given 
for the dispensation, as no spiritual gift or 



3 1 8 SE COND PLENAR Y CO UNCIL 

faculty can be purchased by money without 
committing simony ; but simply that it is 
a penance imposed on the petitioner for 
the liberty granted by the dispensation. 
What the Church is obliged to relax in her 
discipline, she wishes to repair by charities. 
Besides, she wishes thereby to render dis- 
pensations more difficult and less frequent. 

§ 77. ECCLESIASTICAL INTERMENT : SECTA- 
RIAN AND PROFANE CEMETERIES. 

354. We pass to the next question, 
namely, that of ecclesiastical interment. 

In the First Plenary Council of Balti- 
more, the following decree is found : " We 
do not wish the ceremonies of the Church 
to be used in the burial of the faithful, 
whenever their remains are interred in 
sectarian cemeteries or also in profane, 
wherever there are Catholic cemeteries." 
(Cone. Plen. Bait. L no. 80.) 

355. The Fathers of the Second Plenary 
Council of Baltimore modified this law 
thus : 

" ist. When the relatives of a deceased Catholic, 
who became converted to the faith, are still non-Cath- 



OF BALTIMORE. 



3*9 



olics, and possess a lot in a profane or sectarian cem- 
etery, we permit the funeral services to be celebrated 
either at the house, or also publicly in the church, if 
the pastor should judge it expedient, and conducive 
to the spiritual welfare of his flock." (Cone. Plen. 
Bait. II. no. 392. p. 203.) 

" 2d. If, however, the survivors are Catholics, and 
possess a lot in such a cemetery not by any fraudulent 
design, and from the year 1853, and in which bodies 
have already been interred, we leave it to the judg- 
ment and conscience of the pastor to perform the ser- 
vices prescribed in the ritual, privately at the house 
before the body is taken out. We command, how- 
ever, that those sacred rites should never take place, 
in the church, in any such case, except with the per- 
mission of the ordinary." (Cone. Plen. Bait. II. p. 
203.) 

356. We subjoin a case of not unfrequent 
occurrence. A Catholic woman had been 
married to a Freemason by a Protestant 
minister. Being seriously taken ill, she 
sent for the priest, sincerely repented, and 
received all the sacraments of the Church 
with great devotion, and died expressing a 
wish to be buried in a Catholic cemetery. 
The husband was quite willing, nay, anx- 
ious to have the funeral rites celebrated at 
the Catholic church and in accordance with 
its ritual, but insisted that the funeral should 



320 SECOND PLENARY COUNCIL 

be accompanied by the Freemasons in a body- 
both to and from the church ; and that the 
remains should be buried in a profane cem- 
etery, though a Catholic one was attached 
to the church. Moreover, at the grave it- 
self, the president of the lodge would con- 
duct the final ceremonies according to the 
Masonic ritual, by an appeal to the Grand 
Architect of the Universe. 

357. In this case three questions are in- 
volved, viz. : 

1 st. Can a deceased Catholic, whose rel- 
atives are non-Catholics, but do not possess 
a lot in another cemetery, be buried from 
the church, according to the Catholic rit- 
ual, if the body is afterward to be interred 
in a Protestant or profane cemetery ? 

2d. If this can not be done at the 
church and in a public manner, may it 
not take place at the house privately ? 

3d. Is it allowed to perform Catholic 
rites, when Freemasons officially attend 
the funeral ? 

358. The first must be answered in the 
negative, according to No. 392 of the 
Council of Baltimore, as we saw above. 
The same fathers direct that it can be 



OF BA L TIM ORE. 3 2 1 

permitted only when the non-Catholic sur- 
viving relatives " already " possess a lot in 
some other cemetery ; and even then, the 
sacred rites must be performed privately 
at the house, but not in the church, unless 
the pastor should think the contrary to be 
expedient. 

In answer to the second question, we say 
that the ceremonies of the Church cannot 
take place either at the house or in the 
church, but must be simply omitted, as ap- 
pears from the answer just given. 

359. And, thirdly, even though they had 
already owned a lot, Catholic services could 
not take place if Freemasons were officially 
to accompany the body. 

Thus the Statutes of the Diocese of 
Newark declare : 

" But if it should happen that a dying man should 
abjure a secret society, and be reconciled with the 
Church, we allow the sacred rites to be used in his 
funeral ; with this condition, however, that the members 
of the lodge should not accompany the funeral in their 
regalia." (Stat. c. iv. § xiv. p. 48. edit. 1869.) 

This is in conformity with the spirit of 
the Church and the desire of the Fathers 
of Baltimore. 
2 1 



322 



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§ 78. DAYS OF PRAYER AND THANKSGIVING 
SET APART BY CIVIL AUTHORITY. 

360. An excellent rule is laid down by 
the Fathers of Baltimore in regard to days 
of prayer and thanksgiving set apart by the 
civil magistrates in this country. 

Generally speaking, these days are strict- 
ly observed in Protestant churches by 
prayer meetings and the inevitable sermon. 
Herein, they act in conformity with their 
common custom, dating back to, and rest- 
ing on, the principles that surrounded their 
origin. 

Protestants of all denominations have 
ever sought the support of temporal rulers. 
Without it, few if any of the sects would 
have enjoyed any other but a short-lived 
and ephemeral existence. Deprived of 
the help of God, they solicit the assistance 
of man. 

This was notoriously the case in regard 
to Lutheranism and the English Reforma- 
tion. The former was encouraged, sus- 
tained, and propagated by the German 
princes : the latter was originated, kept up 



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323 



prosperously, and perpetuated by the lust, 
cruelty, and ambition of Henry VI II., Eliz- 
abeth, and the succeeding monarchs. 

This prop has lately been taken, in part 
at least, from under its feet by the dises- 
tablishment of the National Church in Ire- 
land ; and already are the symptoms of its 
complete dismemberment and decay but 
too apparent. Owing its origin, at least in 
great part, to temporal rulers, Protestantism, 
in all its countless variations, naturally al- 
lowed itself to be swayed by those who 
stood by its cradle, and to become their 
obsequious instrument. The throne of 
Caesar was substituted by them for the 
chair of St. Peter. 

361. The same may be said, in a greater 
or less degree, of all other sectarian de- 
nominations. Their independence is but 
a shadow. While, on the one hand, we see 
the Supreme Pontiff boldly refusing to 
grant Henry VIII. a divorce from Cath- 
arine, his lawful wife, on the other we be- 
hold Luther, with entire ease of conscience, 
permitting the Landgrave Philip of Hesse 
to simultaneously have two wives. 

The Protestant Church has, more or less, 



3 24 SECOND PLENAR Y CO UNCIL 

always acknowledged its dependence on 
the secular power, even in matters of faith 
and morals, while the Catholic Church has 
just as strenuously asserted its entire in- 
dependence in regard to both. 

362. When, therefore, secular magistrates 
take it upon themselves to prescribe days 
of prayer and thanksgiving, the Church 
evidently cannot approve of such legisla- 
tion, or recognize these rights to be in- 
herent in the civil government. 

Nor does the Constitution of the United 
States imply it. Congress, it is explicitly 
enacted, shall make no laws respecting the 
free exercise of any religion. Church and 
State, therefore, are entirely distinct and 
separate according to our fundamental 
laws. 

The sphere of civil government is secu- 
lar ; its aim is temporal. The Church 
alone can establish days of worship. It is 
for this reason that Catholics do not ob- 
serve those days of prayer and fasting 
which are prescribed, or rather recom- 
mended by our Government, except when 
they are designated by the ordinary. 

It would be a silly, if not malicious infer- 



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ence, to ascribe this to a want of patriotism 
or loyalty. The Fathers of Baltimore say: 

u If, however, on account of public calamities, it 
should be expedient to recite prayers in the vernacu- 
lar, in churches, this should not be done, except by 
authority of the ordinary ; and only such forms of 
prayer should be used as are prescribed by him. The 
same holds good in regard to days of thanksgiving, 
designated by the civil authority. For, on all these 
days, we wish that the rites of the Church should take 
place by authority of the bishop only. Politics should 
never be mentioned from the pulpit." (Cone. Plen. 
Bait. II. n. 399. p. 206.) 

363. Several bishops are accustomed to 
order divine services to be held in all the 
churches of their dioceses on such days as 
are set apart by the Government. In this 
manner they avoid even the appearance of 
disloyalty, and at the same time preserve 
the principle of religious independence and 
supremacy. 



326 SECOND PLENARY COUNCIL 



CHAPTER XXVI. 

Monks and Nuns. 

See Cone. Plen. Bait. II. tit. viii. cap. i. ii. p. 209 : Cone. 
Trid. sess. xxv. cap. v. : Soglia, vol. ii. lib. i. cap. iv. § 30 : 
Bened. XIV. De Synod. Dioc. lib. xiii. : Kenrick, Theol. 
Mor. torn. i. tract, viii. : Gury, edit. Bailer, torn. ii. De Stat. 
Partic. : Bouvier, De Poenit. : Reiffenstuel, Jus Can. torn, 
iii. tit. xxxv. § 2. p. 547 seq. edit. Venet. 1730. 

§ 79. REGULARS AS PASTORS OF SOULS. 

364. The Fathers of Baltimore very 
properly observe that religious communi- 
ties, in order to be useful, should have per- 
manent and fixed foundations or monaste- 
ries, lest, as already Boniface VIII. com- 
plained of the religious orders of his time, 
they should continually be shifting from 
one place to another. 

It was likewise established by the First 
Provincial Council of Cincinnati that re- 
ligious could not recede from agreements 
made with bishops ; that regular pastors 



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327 



could not be removed from churches com- 
mitted to their care, unless others were 
substituted with the consent of the ordi- 
nary. (Cone. Plen. Bait. II. p. 210.) 

This was confirmed by the Fathers of 
the Second Plenary Council of Baltimore, 
who added : 

" Religious having charge of schools, colleges, and 
churches, cannot leave them, except after having given 
six months' notice to the bishop. " (lb. 212.) 

365. One of the necessary prerequisites 
in the erection of monasteries and founda- 
tion of religious communities is a sufficient 
guarantee of support. 

It must consist of a safe income, and be 
capable of supporting at least twelve re- 
ligious. (Cone. Trid. sess. xxv. c. v.) 

In this manner the Church wishes to 
prevent this holy state from falling into 
contempt by being exposed to want or 
misery. For the same reason does she 
require a sufficient means of support as 
one of the conditions of ordination to the 
priesthood. 

366. In order to cut off any possible oc- 
casion of dispute, the Fathers of Baltimore 



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advise that an accurate agreement be drawn 
up in writing between the ordinary and the 
religious community, in regard to temporal 
as well as spiritual matters. - 

367. Priests of a religious order, having 
charge of souls, are subject to the juris- 
diction of the ordinary in the following 
cases : 

1 st. In all that concerns the care of 
souls. 

2d. In the administration of the sacra- 
ments. 

3d. During the episcopal visitation, they 
fall under the bishop's authority and in- 
spection in those things only that relate to 
the parochial charge. 

4th. In all diocesan and provincial stat- 
utes. 

5th. In the establishment of religious 
houses, for which episcopal permission is 
necessary. 

6th. In the ordination of their pupils. 

7th. In preaching. 

8th. In the exposition of the Blessed 
Sacrament. 

9th. In the approbation of books treat- 
ing of religious subjects. 



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ioth. In the erection of confraternities, 
nth. In the confessions of nuns and 
sisters having simple vows. 

§ 80. NUNS : NATURE OF THEIR VOWS IN 
THE UNITED STATES. 

368. The Fathers of the Second Plen- 
ary Council next discuss the nature of 
religious female communities. The re- 
ligious state itself may be defined : 

u The state of such of the faithful as aspire to 
Christian perfection, by means of the perpetual vows 
of obedience, poverty, and chastity, leading a life in 
community, and approved by the Church." (Sogl. 
vol. ii. 1. i. c. iv. § 30.) 

Solemn vows were formerly considered 
as pertaining to the essence of the religious 
state. At present they are no longer es- 
sential, simple vows being invested with 
the same privileges. 

369. It may be doubted whether in this 
country there are any solemn vows. The 
following answer was given by Rome to the 
Archbishop of Baltimore : 

1 st. Vows made by nuns of the Visita- 
tion, in monasteries situate in Georgetown, 



SECOND PLENARY COUNCIL. 



Mobile, Kaskaskia, St. Louis, and Balti- 
more, are solemn according to former re- 
scripts of the Holy See. 

2d. As regards the law of enclosure, 
these nuns may use the privileges accorded 
by the Holy See. 

3d. For the future, these nuns shall first 
make simple vows immediately after their 
novitiate ; and after the lapse of ten years 
only, shall they be admitted to solemn pro- 
fession. 

4th. The vows of all other nuns in con- 
vents already established are simple, ex- 
cept where a rescript from the Holy See 
has been obtained granting solemn vows. 

5th. In all convents to be erected here- 
after, the vows will be simple. 

370. From this it will be seen that in this 
country there are but few convents of re- 
ligious women that have solemn vows ; that 
with the exception of the nuns of the Visit- 
ation, above mentioned, all the rest have 
but simple vows, save in particular cases 
where special rescripts were obtained. 
Simple vows are of perpetual force, as far 
as the religious herself is concerned. 
Simple vows differ from the solemn as 
follows : 



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i st. They do not entail strict enclosure. 
2d. Neither do they incapacitate nuns 
from personally holding property. 

§ 8l. LAW OF ENCLOSURE NOT BINDING 
ON NUNS HAVING BUT SIMPLE VOWS. 

371. The law of enclosure not only pro- 
hibits men and women from entering con- 
vents save in case of necessity, proper per- 
mission having previously been obtained ; 
it moreover strictly forbids the nuns or sis- 
ters themselves from going outside the en- 
closure, or leaving the convent, even for 
the shortest space of time. (Bened. XIV. 
De Syn. Dioc. lib. xiii. n. 24.) 

The transgression of this law is punished 
with excommunication " ipso facto incur- 
renda." 

372. It may here be asked: Are relig- 
ious communities of women in this country, 
having simple vows only, bound to observe 
enclosure ? We answer in the negative. 
Already Benedict XIV., in the constitution 
" Quamvis," April 30, 1749, decided that 
those religious women in England whose 
chief duty was the education of girls, and 



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who took the vows of poverty, obedience, 
and chastity, without observing enclosure, 
were not religious in the strict sense of the 
term ; that their promises or vows were at 
most simple vows, and that they should 
always be under the jurisdiction of the 
ordinary. 

373. Now enclosure was always consid- 
ered an essential element and effect of sol- 
emn vows only. Hence a sufficient means 
of support was deemed indispensable. 

The introduction of enclosure is gen- 
erally attributed to Boniface VIII. 

Kenrick very pertinently says with regard 
to monks : 

" In this country, this law does not, as yet, oblige ; 
for in most of the religious houses, owing to the diffi- 
culty of having lay brothers, servant girls are em- 
ployed j and when ' regular ' priests have charge of 
a parish, women must of necessity often enter the 
house for the purpose of obtaining spiritual counsel 
and assistance." (Kenr. Theol. Mor. vol. i. tract, viii. 
p. 235. cap. ii.) 

374. And again, the same theologian 

thus teaches : 

" The law of enclosure does not extend to Sisters 
of Charity and other pious women, who do not take 
solemn vows." (Ib. p. 238.) 



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333 



In France also, but simple vows obtain, 
since the Revolution of 1 789, save in some 
instances where special rescripts have been 
obtained. 

In 1820, the S. Pcenitentiaria stated to 
the Bishop of Limoges " that solemn vows 
were those which were received by the 
Church precisely in that solemn character ; 
which, moreover, perpetually and immu- 
tably rendered the person taking such vows 
— considering the ordinary law, and not 
supposing a special dispensation of the 
Pope — incapable of contracting marriage 
and of acquiring and retaining possession 
of any property." (See ap. Gury, edit. Ball, 
torn. ii. tract. De Stat. Part.) 

Hence it would seem that in this coun- 
try, the vows not being solemn, nuns or 
sisters can possess personal property, not, 
however, so as to dispose of it licitly with- 
out the consent of the superior. 

375. Moreover, as enclosure is pre- 
scribed for nuns having solemn vows, it is 
not strictly obligatory in America, where, 
with few exceptions, vows are simple. 
Hence the penalty for breach of enclosure 
is not incurred. Yet, as Kenrick, observes, 



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SECOND PLENARY COUNCIL 



" it is very desirable that this most holy dis- 
cipline should be introduced among us as 
far as practicable." (L. c. p. 235. Mor. i.) 

When it is prescribed by the rules of a 
community, it should be observed. Yet 
there is no strict obligation that binds un- 
der sin. (Gury.) 

376. The Council of Trent enjoins : 

" But for no nun after her profession shall it be 
lawful to go out of her convent, even for a brief period, 
under any pretext whatever, except for some lawful 
cause, which is to be approved of by the bishop." 
(Cone. Trid. Sess. xxv. chap, v.) 

And again : 

" And it shall not be lawful for any one, of whatso- 
ever birth or condition, sex or age, to enter within the 
enclosure of a nunnery, without the permission of the 
bishop or of the superior obtained in writing, under 
the pain of excommunication to be ipso facto incur- 
red." (Sess. xxv. 1. c.) 

377. It may be of no little interest to 
know precisely what is meant by enclosure, 
ReifFenstuel thus defines it : 

" The enclosure of a monastery or convent is that 
entire space which is surrounded and closed in, by the 
walls, partitions, or fences of the monastery (or con- 
vent) ; hence whatever is situate within that area is 
termed enclosure." (Navarrus, lib. v. n. 3 ; Sanchez, 



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335 



lib. vi. Moral, cap. xvii. n. 12. • Reiff. lib. iii. tit. xxxv. 
§ 2. p. 547-) 

Again this author says : 

" From this (definition of enclosure), we infer that 
not only the monastery itself, but also the gardens 
attached to the monastery, used for purposes of recre- 
ation, come under the name of enclosure." (Reiff. 
1. c.) 

378. That nuns or religious having but 
simple vows are not canonically subject to 
the law of enclosure, seems to be clearly 
enough stated by Gury, as follows : 

" All faithful of either sex entering convents of nuns, 
as also nuns who admit them, incur excommunication. 

" In France this excommunication seems at present 
to have ceased to be binding, as in that country the 
religious are no longer nuns in the strict sense of the 
term, that is, solemnly professed." (Gury, vol. ii. De 
Cers. app. ii. edit. Ball. p. 705.) 

Mark the process of reasoning. Nuns 
in France are not obliged to observe en- 
closure because they are no longer bound 
by solemn vows. 

379. This argument, as is evident, applies 
with equal cogency to all religious com- 
munities of females in the United States, 
excepting some houses of the visitandines, 
as all have but simple vows. Some of 



SECOND PLENARY COUNCIL 



them, however, were formerly subject to 
the law of enclosure, as they took sol- 
emn vows. Such are, for instance, the 
Benedictine nuns, and others who are still 
admitted to solemn profession in Europe. 

With regard to these, we ask, are they 
obliged to observe enclosure by virtue of 
their rule, that prescribes it ? 

Before giving a direct reply, we premise, 

i st. Generally speaking, the rules of 
religious institutions do not of themselves 
bind even sub veniali peccato. This is the 
common opinion of theologians. (Gury, ed. 
Ball. vol. ii. cap. i. De Stat. Part. p. 79.) 

2d. When a disregard for the rules is 
combined with contempt of them, this trans- 
gression is always more or less sinful. (Ib.) 

3d. Trangressions against the vows may 
be grievously sinful or but venially. (Ib. 

l.C.) 

We now answer directly as follows : 
1st. In the United States, religious wo- 
men who have but simple vows do not fall 
under the law of enclosure as prescribed 
by the canons which attach the obligation 
to solemn vows only. 

2d. When the rules of such religious 



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337 



communities nevertheless prescribe en- 
closure, the law cannot bind in the strict 
sense of the term, and can oblige only sub 
levi, as other rules do. Neither do we 
think, in consequence, that the bishop's per- 
mission is necessary to be able to dispense 
with the law. 

380. We sum up : 

1 st. All religious communities of females 
in America have but simple vows, except 
the visitandines in the places mentioned, 
and where a special papal rescript has been 
secured. 

2d. The result of this is that sisters 
retain the right of property. 

3d. They are not bound, at least canoni- 
cally, by the law of enclosure, though it is 
desirable that they should observe it as far 
as possible. 

Such are, ordinarily, the effects of simple 
vows. No one, however, can for a mo- 
ment entertain the slightest doubt that the 
Holy See could make absolute poverty and 
enclosure obligatory on nuns not having 
solemn vows. 
22 



SECOND PLENA R Y COUNCIL 



§ 82. CONFESSIONS OF NUNS AND SISTERS. 

381. We pass to the question of juris- 
diction over religious communities of 
women. We ask : 

1 st. Is a special approbation needed to 
hear the confessions of Sisters of Charity, 
and other religious females, having but 
simple vows ? 

2d. Have pastors, whose schools are 
conducted by the above religious, ordinary 
jurisdiction to hear their confessions ? 

382. We answer the first in the words 
of Kenrick : 

" Sisters of Charity, and other communities of re- 
ligious women, in which but simple vows are taken, as 
also Sisters of the ' Sacred Heart/ are comprised with- 
in the same law, viz. that a special approbation of 
the bishop is requisite to hear the confessions of these 
religious women." (Kenr. Theol. Mor. ii. tract. De 
Pcenit. cap. viii. § 2.) 

Again, these communities are either ex- 
empted from, or subject to, the jurisdiction 
of bishops.' In the first case, the " regular" 
prelates present or designate the confessor, 
to be approved or accepted by the ordinary; 



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339 



in the second case, the bishop alone both 
selects and approves him. 

Three years is the term fixed for one 
confessor; afterward another should be ap- 
pointed. 

" But in this country," says Kenrick, " the custom 
exists of appointing such confessors without any limit 
of time." (Kenr. 1. c. p. 216.) 

383. Moreover, the same author informs 
us, 

" These religious communities may for sufficient 
reasons refuse a confessor appointed by the bishop. 
And bishops should not force upon them any confes- 
sor against whom they reasonably object, lest the sal- 
vation of souls become imperilled." (Kenr. 1. c.) 

" Nor should their confessions be heard in the sac- 
risty, or in any other private place, but in the church." 
(Kenr. ib.) 

384. It might be said that Sisters of 
Charity and other religious women, hav- 
ing but simple vows, are by no means nuns 
in the proper sense of the term, and that 
therefore, according to the common law of 
the Church, no special approbation is es- 
sential with regard to them. 

This objection might hold, if no particu- 
lar legislation existed to the contrary. But 



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SECOND PLENARY COUNCIL 



in fact, various decrees of the Holy See 
make the special approbation necessary, as 
Kenrick proves. Nor will any one deny 
that the Roman Pontiff or the ordinary of 
the diocese has the right of restricting the 
jurisdiction of confessors, even where the 
common law does not. 

385. As regards the confessions of sis- 
ters who teach in parochial schools, and 
who are attached to parishes, we hold that 
the respective pastors are their confessors, 
"jure quidem ordinario." 

Besides, in no supposition do they need, 
it seems to us, an explicit approbation, as 
it is of necessity already implied in the 
permission which the ordinary gives to 
pastors, namely, to confer on the sisters the 
charge of the parochial schools. A paral- 
lel case is presented in the appointment 
of pastors. Priests upon whom parochial 
charges are conferred require no explicit 
approbation for confessions, the very colla- 
tion to a parish being an implicit approba- 
tion, as the office of pastor implies that of 
confessor. 

Yet it may be advisable in some cases, 
for the sake of greater tranquillity of con- 



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341 



science, explicitly to obtain faculties, even 
in the above instances. 

The following from Bouvier will perhaps 
be conducive to the better understanding 
of the present subject: 

" As approbation depends entirely upon the free 
will of the bishop or vicar general, it may be limited 
as to place, time, persons, and sins ; hence those that 
are approved for men only, cannot hear women, nor 
validly absolve them." (Bouvier. Tract. De Pcenit. 
art. ii. § v.) 

In many parts of Europe approbation 
for men is given first ; that for women, 
some time afterward only. 

386. The necessity of a special appro- 
bation for nuns is derived from these 
sources : 

1 st. From the constitution of Benedict 
XIV. given 1726. 

2d. From the common practice of the 
Church. 

3d. From various decrees of the Holy 
See, which enjoin : 

(#) That confessions of nuns heard with- 
out a special approbation are null and void. 

(b) That the permission of hearing 
women does not extend to nuns. 



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SECOND PLENARY COUNCIL 



(c) That special permission is necessary 
for each convent ; as approbation for one 
convent does not extend to any other. 
(Bouvier, I. c. p. 459. torn, iii.) 

Again, we quote from the same author : 

" By nuns, such only as live in enclosure are here 
meant ; and not those who are not bound to observe 
enclosure, and who are commonly called Sisters of 
Charity. It is certain, however, that bishops can or- 
dain that a special approbation is also necessary to 
hear their confessions." (Bouvier, 1. c.) 

387. We ask : Gan the confessions of the 
above religious women be heard in the 
chapels generally attached to their houses 
or missions ? At first sight it would not 
appear allowable to do this, as it is strictly 
inhibited to hear confessions of Sisters of 
Charity and other religious communities 
in any other place save in the church. 

Yet we think that the chapels of these 
religious come under the denomination of 
churches. As a general rule, they are 
public oratories, free access to all being 
given. Custom, moreover, sanctions this 
practice. With but rare exceptions, we be- 
lieve, the confessions of sisters are heard in 
their chapels throughout the United States. 



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§ 83. EXTRAORDINARY CONFESSORS OF 
NUNS. 

388. The Fathers of the Council of 
Trent thus decree : 

" But besides the ordinary confessor, the bishop 
and other superiors shall twice or thrice a year offer 
them an extraordinary one, whose duty it shall be to 
hear the confessions of all nuns." (Sess. xxv. ch. x. 
on Ref.) 

389. We cannot better elucidate this 
matter than by analyzing the constitution 
" Pastoralis Curae " of Benedict XIV., given 
Aug. 5, 1748. (See Bullar. Bened. XIV. 
torn. ii. edit Prati, 1846.) The following 
are its main points : 

1st. Experience teaches that it is neces- 
sary for the tranquillity of conscience of 
religious women, to give them an extraor- 
dinary confessor several times a year. 

2d. Bishops and regular prelates should 
promptly proffer these extraordinary con- 
fessors to nuns. 

3d. All the nuns are not obliged to con- 
fess their sins to the extraordinary con- 
fessor ; but all of them are bound to pre- 
sent themselves to him, in order not to 



344 SECOND PLENARY COUNCIL 

render this occasion odious to those who 
wish to avail themselves of it. 

4th. Though the Council of Trent made 
the law in favor of cloistered nuns, yet is it 
also to be extended to all women living in 
community, even without observing enclo- 
sure ; as also to all communities of women 
or girls residing in convents or academies, 
and having but one confessor assigned 
them. 

In fact, this law was made in favor of all 
communities for whom but one confessor 
was set apart. This being the principal 
reason for the enactment of the law, it ex- 
tends to all cases where the above persons 
living in common have but one confessor. 

5th. The next question put by Benedict 
XIV. is: 

To whom belongs the privilege of de- 
puting the extraordinary confessor ? 

It is thus answered by himself: Easy of 
solution is this query ; for the designation 
of the extraordinary can, regularly speak- 
ing, belong to him only whose office it is 
to appoint the ordinary confessor. Hence 
the bishop, who gives the latter to nuns, is 
bound, according to the decree of Trent, to 



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345 



offer them two or three times a year an ex- 
traordinary confessor. 

This holds also of regular prelates, who 
have the faculty of providing confessors 
for nuns immediately subject to them. 

6th. Besides, in case of sickness this 
privilege should be freely given to nuns. 

7th. In like manner, in case nuns, who 
have an aversion for the ordinary confessor, 
should refuse to confess to him, even then 
the bishop or regular prelate should not 
hesitate to appoint a special confessor for 
them, whenever they reasonably request 
this favor. An exception is to be made 
then only, when the petition is manifestly 
whimsical. 

8th. Again, members of these communi- 
ties frequently may not refuse to go to the 
ordinary confessor, for whom they have no 
dislike whatever, yet they may wish to have 
a different confessor oftener than is pre- 
scribed by the Council of Trent ; and even 
in this case, bishops should not be slow to 
bestow this favor. 

9th. As a general rule, the ordinary con- 
fessors of nuns, subject to bishops, are se- 
lected from the secular clergy, and the extra- 
ordinary ones from the regular priesthood. 



346 SECOND PLENARY COUNCIL 



10th. The faculties of the ordinary con- 
fessor are in abeyance while the extraor- 
dinary exercises his office. The latter 
should forthwith leave the convent when 
all the confessions have been heard. 

390. This is a brief summary of the 
constitution " Pastoralis Curae." We may 
now venture to apply these various points 
to this country. We ask, therefore : 

1 st. To whom appertains the appoint- 
ment of extraordinary confessors for nuns, 
in the United States ? 

2d. How often should they be offered to 
nuns ? 

In answer to the first question, we say, 
that, with but few exceptions, the appoint- 
ment of extraordinary confessors belongs 
to bishops, since the various religious com- 
munities of women are generally subject 
to them. This has reference to Sisters of 
Charity, Sisters of the Sacred Heart, of 
Notre Dame, of St. Joseph, and other 
kindred communities. But few of them 
are subject to regular prelates. Kenrick 
says : 

" A special approbation of the bishop is necessary 
to hear the confessions of nuns, though they be exempt- 



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347 



ed from the jurisdiction of ordinaries ; for this was 
decreed by Clement X., who directed that regulars or 
monks require episcopal approbation also with regard 
to nuns subject to themselves ; and that those who 
are approved for one monastery should not be con- 
sidered approved for any other ; that, moreover, extra- 
ordinary confessors must obtain special approbation 
as often as they may be deputed to that office. ,, 
(Kenr. Mor. vol. ii. tract, xviii. De Pcenit. p. 216.) 

Again, this author says : 

" Confessors of exempted nuns are presented by 
their own prelates and approved by bishops : other 
confessors are appointed by bishops themselves." (lb.) 

Gury maintains the same : 

" Nuns cannot confess except to a priest especially 
approved for them by bishops, though they be exempt- 
ed from episcopal jurisdiction, and subject to regulars 
of their own order." (Gury, torn. ii. p. 362. edit. 
Bailer. Romae, 1869.) 

Father Ballerini says : 

" The offering of extraordinary confessors belongs 
to those whose duty it is to assign the ordinary ones. 
Now, some nuns are subject to prelates of monks ; 
others, however, to the bishop : for the former the 
regular prelate will depute the confessors ; but he 
shall select only such as are specially set apart for 
nuns by the ordinary of the place : for the latter the 
bishop will appoint the confessors." (Ap. Gury, Mor. 
vol. ii. p. 362, note a.) 



348 



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391. From the foregoing it follows : 

1 st. That confessors, whether ordinary 
or extraordinary, of religious women and 
nuns subject to bishops, are appointed by 
the ordinary. 

2d. That the ordinary as well as extraor- 
dinary confessors of nuns and other reli- 
gious women subject to regular prelates, 
are designated or appointed by those regu- 
lar prelates and superiors, and presented 
by them to bishops who approve them, or 
consent to their appointment. 

This approbation is essential to the va- 
lidity of confessions. 

3d. In no case have regular prelates the 
power of giving faculties to hear the con- 
fessions of nuns subject to themselves in- 
dependently of episcopal permission. 

In regard to male members of their own 
institute, the case is entirely different. 
For, " regular " confessors hold immediate- 
ly of their superiors, not of bishops, facul- 
ties to absolve members of their own order, 
without limit to time or place. 

This, as we have seen, does not extend 
to nuns, even when subject to them. Nor 
does this privilege apply to confessions of 



OF BALTIMORE. 



349 



secular persons. This law is thus laid 
down by Kenrick : 

" It is evident from the above words of the Council 
of Trent, that regulars cannot hear the confessions of 
lay people, even of priests, unless they are approved 
by the bishop, or have a parochial benefice." (Kenr. 
Mor. vol. ii. p. 214.) 

Of course, regulars do not require epis- 
copal permission or faculties to absolve 
members of their own institute : they ob- 
tain them from their immediate superiors. 
This holds good of members of their order, 
wherever they may reside. 

392. In answer to the second question, 
we say, that in this country, confessors ex- 
traordinary should be given to nuns as 
frequently as elsewhere. 

Case. — Cayus, a parish priest, is engaged 
on Saturday afternoon in hearing the con- 
fessions of his people. Among other peni- 
tents that present themselves, he discovers 
a nun belonging to a religious community 
of a neighboring place. Cayus is some- 
what perplexed as to whether he has the 
faculty of absolving her. Yet, as he is 
approved for " sisters " who are teaching 
in his parochial schools, he makes up his 



SECOND PLENARY COUNCIL. 



mind that he can absolve all nuns that may 
come to him, and accordingly gives abso- 
lution to his penitent. We ask, therefore, 
was the absolution valid ? 

393. At first sight a negative answer 
suggests itself to us. In fact, Clement X. 
ordained that confessors approved for one 
convent should not be considered ap- 
proved for any other ; that extraordinary 
confessors have need of special approba- 
tion as often as they may be deputed for 
that office. (Ap. Kenr. Theol. Mor. vol. 
ii. p. 216.) 

From this ordinance, it would seem that 
pastors, who have permission to hear sisters 
teaching their schools, cannot absolve nuns 
or sisters belonging to other places. 

394. Yet a close investigation of the 
matter inclines us to embrace the opposite 
opinion. We think that pastors and con- 
fessors, approved for nuns and sisters hav- 
ing charge of their parochial schools, have 
unrestricted faculties to absolve all such 
religious women, of whatever order they 
may be members, or from whatever place 
they may come. We believe, therefore, 



OF BAL TIMORE 



351 



that Cayus validly imparted absolution in 
the case. 

For it must be borne in mind that the 
Tridentine decree enjoining that extraor- 
dinary confessors should be offered twice 
or thrice a year to nuns, was chiefly though 
not exclusively made in favor of " clois- 
tered " nuns, who consequently were sup- 
posed to be unable, at times, to leave the 
convent and confess to another priest. 

395. But the case of non-cloistered nuns 
and sisters is quite different. They go out 
of their houses not unfrequently, either to 
see their neighboring sisters, or to attend 
to matters of business in other places. 
Their opportunities of confessing to other 
priests are therefore numerous. Now, the 
law of Trent, far from'inhibiting this liberty 
with regard to choosing confessors, sought 
precisely to attain this object by enacting 
that extraordinary confessors should be 
given several times a year to nuns who, 
because of enclosure, were unable to select 
any but the ordinary confessor. 

Analogy, therefore, leads us to infer that 
uncloistered sisters, when outside their 



352 SECOND PLENAR V CO UNCIL 

convents or places of residence, may con- 
fess to any priest approved for nuns. 

396. Besides, this reasoning appears to 
be confirmed by the general opinion of 
theologians, that the law which requires 
that nuns shall confess only to confessors 
especially appointed for them, must be 
understood as applying to nuns only when 
actually in the convent ; that those who 
happen to be outside of them can be ab- 
solved by any confessor, even by one who 
is not especially approved for nuns. (See 
Gury, vol. ii. p. 364.) 

397. Another question may here present 
itself. Are pastors who have permission 
to hear nuns and sisters, teaching their 
parochial schools and attached to the 
parish, also allowed to absolve such reli- 
gious women throughout the diocese ? 

We answer in the affirmative. This, at 
any rate, appears to be customary in some 
dioceses. Hence, bishops, it would seem, 
approving confessors for nuns, place no 
limit to such jurisdiction. The custom of 
our country may safely be followed. 

Even with regard to extraordinary con- 
fessors, it would appear, no special appoint- 



OF BALTIMORE. 



353 



ment of the bishop is necessary. For we 
are informed that Sisters of Charity and 
other religious women have not unfre- 
quently themselves invited confessors, both 
ordinary and extraordinary, to hear their 
confessions. 

From what has been said, it is evident 
that in the United States no fixed eccle- 
siastical discipline has as yet been adopted 
in this matter. It were desirable, indeed, 
that bishops should assert and exercise 
their full rights on this head. 

They alone, and not the mother superior 
of any community, have the right as well 
as duty to appoint the extraordinary and 
ordinary confessor. 

Would it not also be appropriate offi- 
cially to inform the respective pastors of the 
appointment of the extraordinary confessor, 
when it concerns nuns under their charge ? 
This is done in Europe. We are of opin- 
ion that pastors would more cheerfully 
receive notice of such appointments from 
the bishop than from the sisters. 
23 



SECOND PLENARY COUNCIL 



CHAPTER XXVII. 

On Books and Newspapers. 

See Walter, Jus Can. p. 338 : Devoti Instit. Can. lib. iii. tit. vii. 
§ vi. not. 2. : Zallwein, Princip. Juris Eccl. torn. i. qusest. 
iv. c. ii. 

§ 84. PERMISSION OF PRINTING BOOKS: 
LAW OF THE INDEX. 

398. The Fathers of Baltimore say : 

" Now, according to the law of the Church, books 
treating of religion and divine worship should not be 
printed without the approbation of the ordinary : if, 
however, they are published without the consent or 
even against the will of the bishop, we forbid the read- 
ing them." (Cone. Plen. Bait. II. p. 254.) 

Again, they renew the decree of the First 
Council of Baltimore, which is as follows : 

" It is advisable that bishops should select several 
priests of sound theological learning, in each diocese, 
to whose examination, prayer books, and others treat- 
ing of religion, should be submitted, before being ap- 
proved and recommended to the faithful by the ordi- 
nary. " (L. c.) 



OF BALTIMORE. 



355 



This decree was confirmed by the Fathers 
of the Second Plenary Council, as follows : 

" This decree we confirm, and furthermore extend 
so that it shall bind all bishops in whose dioceses 
Catholic printing establishments exist." (P. 255.) 

399. It may then be asked, does the law 
of the Sacred Index in regard to hereti- 
cal books, and such as treat of religion in 
general, hold in this country ? 

Again : Is it necessary that books treating 
of faith and morals should be submitted to 
the judgment of the ordinary ? 

There is a natural obligation of avoiding, 
as far as is morally possible, anything that 
leads to sin, or even to the danger of com- 
mitting it. To this natural and universal 
law is added a positive law, by the Church, 
determining and specifying what is com- 
prised in the former. 

Bad books and writings have been set 
down by her as being among the most 
dangerous occasions of vice. Her office, 
then, as the guardian of the flock of Christ, 
clearly invests her with the right of warn- 
ing the faithful against such books, and of 
forbidding their perusal even under pain 
of incurring ecclesiastical censures. A 



356 



SECOND PLENARY COUNCIL 



list or index of such works is drawn up by 
a body of cardinals and learned theologians. 
The rules to be observed by this congre- 
gation or committee are laid down by Bene- 
dict XIV. (Constit. Sollicita, 1753, Bullar. 
torn. iii. p. 1 10.) 

400. They are as follows : 

The book in question is first given to 
one of the consulters or examiners, who 
carefully and attentively reads it, writing- 
down his criticism, and pointing out the 
places and pages that seem to contain any 
errors. Then it is sent, together with these 
notes, to each of the other examiners, in 
turn, who finally decide in a general meet- 
ing of all the examiners, held every Mon- 
day in the rooms of the Sacred Office, 
what censure should be attached to the 
book. This censure, together with the 
book and the various opinions of the ex- 
aminers, is transmitted to the cardinals, who 
definitively settle the entire affair, in their 
meetings held each Wednesday, in the 
cloister of the Dominicans, called " Sopra 
la Minerva." 

And lastly, the assessor or secretary of 
the Sacred Office reports all these trans- 



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557 



actions to the Supreme Pontiff for final 
adjudication. 

401. When, however, judgment is to be 
passed on the book of a Catholic writer, 
the giode of procedure is this : 

When one member of the board of ex- 
aminers thinks that the book ought to be 
condemned, it will then be examined a 
second time by a different person, who is 
entirely ignorant of the name and opinion 
of the first examiner : if they agree, their 
judgment will be reviewed in a general 
meeting of cardinals deputed for this charge; 
and finally their conclusion is to be con- 
firmed by the Pope. 

Should they, however, disagree among 
themselves, a third examiner will revise the 
book until a concurrent opinion is reached. 

402. The committee or congregation of 
cardinals intrusted with this matter was in- 
stituted by Pope Paul IV., and is called 
" Congregation of the Sacred Office," or 
also " the Roman Universal Inquisition." 

But as the object of this congregation 
was to investigate heresy in all its count- 
less ramifications, its labors soon became 
too onerous, and Pius V. found it neces- 



358 



SECOND PLENARY COUNCIL 



sary to establish a new committee of car- 
dinals and theologians, whose special 
and almost sole end was to examine 
books that w r ere to be either proscribed, 
emended, or permitted. To this latter 
committee the examination of books is at 
present almost exclusively referred. The 
rules by which it is governed do not mate- 
rially differ from those of the Sacred In- 
quisition, which we have given. As this 
committee does not meet every week, its 
secretary receives all denunciations of 
books. It is his duty diligently to inquire 
of the referee why a particular book should 
be prohibited ; he then attentively peruses 
the work, in order to ascertain the correct- 
ness of the charges, associating with him- 
self two other examiners, appointed either 
by the cardinals or the Pope. If in their 
judgment the book is deserving of censure, 
another examiner who is specially skilled in 
the particular branch of which the work 
treats will be appointed in the same manner 
as the other. His duty is carefully to ex- 
amine the book again, noting the pages that 
contain objectionable matter. A general 
meeting of these councillors then takes 



OF BALTIMORE. 



359 



place : this is done regularly once a month. 
No less than six of them should be present. 
The subject is again discussed, and the 
conclusion arrived at is communicated to 
the cardinals on the committee. 

These finally debate upon the question 
again, and decide on the matter, in a gen- 
eral meeting: their decision is reported to 
the Supreme Pontiff for final action, by the 
secretary of the committee. 

The examiners are selected from the 
secular and regular clergy, from which 
those are chosen who are well versed in 
the various branches of the sciences that 
are treated of in those books. (See Bene- 
dict XIV., Bullar. a. d. 1753, July 9, Con- 
stit. Sollicita.) 

From this brief summary it will be seen 
how guarded is the Church in her judgment 
on works suspected of heresy. We may 
add that the inability of observing these 
cautious measures in this country, owing 
to the scarcity of priests, seems to us to be 
one of the reasons why the law is in abey- 
ance throughout the United States. 

403. The object of this law is thus stated 
by the Fathers of Trent : 



360 



SECOND PLENARY COUNCIL 



" The Sacred and Holy Ecumenical and General 
Synod of Trent . . . hath especially in view to re- 
store at length to its native purity and splendor the 
doctrine of the Catholic faith, which is in many places 
defiled and obscured by the conflicting opinions of 
many who differ from each other ; to bring back to a 
better method of life, manners which have divaricated 
from ancient usage ; and to turn the heart of the 
fathers unto the children, and the heart of the children 
unto the fathers." 

" Whereas then, first of all, it has noticed that the 
number of suspected and pernicious books, wherein 
an impure doctrine is contained, and is disseminated 
far and wide, has in these days increased beyond 
measure, which indeed has been the cause that many- 
censures have been, out of a godly zeal, published, 
. . . and yet that no salutary remedy has availed 
against so great and pernicious a disorder: It hath 
thought good that fathers specially chosen for this 
inquiry should carefully consider what ought to be 
done, in the matter of censures and of books, and also 
in due time to report thereon to this Holy Synod. ,, 
(Cone. Trid. sess. xviii.) 

404. The right of condemning heretical 
books was called in question by the Jan- 
senists in their well-known distinction be- 
tween "right" and " fact " (jus et factum). 
The Church, they contended, might declare 
that a certain doctrine was contrary to faith 
and morals ; but whether such a particular 



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361 



teaching was contained in this or that book, 
or conveyed in the precise words of some 
author, was a matter of fact, that did not 
at all come within the jurisdiction of the 
Church. 

That such an opinion must render the 
magisterial office of the Church simply- 
nugatory, and disable her from warning 
the faithful of danger, is but too apparent. 
Hence such a distinction must be consid- 
ered a groundless Jansenistic invention, or 
rather quibble. (See Walt. Jus Can. p. 
338 ; Devoti Inst. Can. 1. iv. tit. vii. § vi. 
not. 2. 3 ; Zallw. Princ. Juris. Eccl. torn. i. 
quaest. iv. c. ii.) 

405. Another part of this law is that all 
books treating of religious subjects, even 
when orthodox, should be submitted to 
ecclesiastical authority before being pub- 
lished. In America, bishops apply this to 
prayer books, catechisms, and Bibles only, 
and but exceptionally, if at all, to other 
works treating on religious matters. 

They cannot as a general rule superin- 
tend this matter. Their own time is taken 
up by their manifold and pressing episco- 
pal duties. Nor are there priests enough, 



362 SECOND PLENARY COUNCIL 

or means sufficient to sustain such as could 
be specially deputed to . revise and correct 
books. Hence it would seem that, even 
independently of any positive law, this en- 
actment is of no practical consequence in 
this country. The Council of Trent en- 
joins that the Sacred Scriptures, and other 
books treating of religious subjects and 
issued anonymously, should not be printed 
or read without previously being examined 
and approved by the ordinary. (Sess. iv. 
Deer, de Usu et Edit. Libr. Sacr.) 

This of course obtains in its full extent 
wherever the necessary conditions can be 
complied with, which is generally the case 
all over Europe. 

§ 85. IS THE LAW OF THE SACRED INDEX 
BINDING IN THIS COUNTRY? 

406. We now proceed a step farther, and 
ask : Does the law of the Index bind also in 
this country ? We put this question, pre- 
scinding of course entirely from the natural 
obligation of not reading such books with- 
out necessity. This must always remain 



OF BALTIMORE, 



363 



in force, as coming from the dictates of 
nature itself. 

We repeat then, does the positive obli- 
gation exist here ? 

At first sight we should feel inclined 
to answer in the affirmative. Thus, in the 
" Formula of Faculties " given by bishops to 
priests, by virtue of faculties delegated by 
the Pope, among others is the " faculty of 
keeping and reading, not, however, of giv- 
ing to others, books of heretics and infidels, 
treating of their pernicious principles, for 
the purpose of refuting them by word or 
writing." (Formula, n. 12.) 

This seems clearly to imply the obliga- 
tion of the law in this country. 

407. Yet, while fully admitting theoreti- 
cally the force of this sanction, we must at 
the same time concede that practically it 
has ceased to be in vigor ; at least, nowhere 
do we see it enforced or observed. 

A threefold reason seems to justify this 
abeyance of the law : 

1st. The practical impossibility of ex- 
amining and revising all the books in 
question. 

2d. The continual intercourse of our 



3 64 SE COND PLENA RY CO UNCIL 



people with non-Catholics ; the necessity 
of reading their works in order to answer 
the specious fallacies so persistently ad- 
vanced by them. 

3d. The great difficulty that would be 
found in executing the penalties and eccle- 
siastical censures of the Church for the 
transgression of this law. Kenrick says : 

"It is asked whether the rules of the Index are in 
force all over the world. Although several popes 
have declared them to be obligatory on all the faith- 
ful throughout the whole world, yet in many places, 
where heretics live mixed up with Catholics, the rigor 
of these rules must be considered as having been 
relaxed through the benignity and toleration of the 
Sovereign Pontiff, lest souls should otherwise be im- 
perilled. This also P. Philip a Carboneano seems to 
acknowledge in these words : ' If anywhere, out of in- 
dulgence and kindness of the Apostolic See, these 
rules of the Index are not received into practice, but 
one thing can be inferred, namely, that those who 
read prohibited books do not incur the censures of 
the Church.' 

" Neither/' continues Kenrick, "is it always a mor- 
tal sin to read them ; for, although the Church is op- 
posed to it, yet if the prohibitions contained in the bull 
Ccena Domini, and in the rules of the Index, be not 
practically received among us, which seems certain, 
I do not know by what universal law the reading of 
such books is known to be prohibited." (Kenr. Mor. 
vol. ii. tract, xiii. c. v. p. 52. 53.) 



OF BALTIMORE. 



365 



408. It is certain then, according to 
Kenrick, that the rules of the Index do not 
bind in this country. 

We think, however, that it is safe to say 
that the natural prohibition still holds with 
regard to perhaps the greatest number of 
Catholic laymen, w r ho are not sufficiently 
instructed to detect the poison latent in 
such works. Pastors of souls, therefore, 
cannot too severely inveigh against the 
reading of bad books, periodicals, and 
newspapers. 

409. To sum up, there are two things 
to be distinguished, viz. : 

1 st. The reading of prohibited books. 

2d. The printing or publishing of them, 
as well as all other works treating of reli- 
gious matters, without the approbation of 
the ordinary. 

As to the first, the natural law must not 
be confounded with the ecclesiastical law, 
though the latter springs from and is based 
upon the former. The natural obligation 
remains intact in this country ; the eccle- 
siastical may be of effect theoretically, but 
not practically. Both custom and the tacit 
consent of the bishops have abolished it. 



366 SECOND PLENAR V CO UNCIL 

As to the second, custom as well as the 
positive decrees of Baltimore have great- 
ly restricted its sphere. Editions of the 
Bible, catechisms, and prayer books must 
be submitted to the judgment of the ordi- 
nary ; as to other books, says Kenrick, it 
is now certain that the law does not obtain 
in America. 

It is to be hoped, however, that ere long 
the number of priests will be large enough 
to enable bishops exclusively to depute 
some of them for this affair. 



OF BALTIMORE. 



367 



CHAPTER XXVIII. 

Censures. 

See Kenrick, Mor. vol. ii. tract, xxii. p. 345 seq. : Walter, Jus 
Can. lib. iv. c. iii. § 174. p. 342 seq. : Bouvier, torn. vi. 
tract. De Censuris, p. 503 seq. ; Blackstone's Comment, 
bk. iii. ch. v. : Soglia, vol. ii. and vol. i. p. 139 seq. 

§ 86. ECCLESIASTICAL JUDICATURE IN 
GENERAL. 

410. We quote with pleasure, from the 
" Year of Preparation," as follows : 

" As respects discipline, the Church of France does 
not resemble that of other Catholic countries, and per- 
haps there is none other which looks to profit more 
largely by the decisions of the coming Council (Vati- 
can I.). The state of the French clergy ever since the 
Concordat with Napoleon I., in 1802, has been alto- 
gether exceptional, not only in their relations with a 
Government which has taken the organic Articles as 
its rule, but as respects internal discipline. Canon 
law is practically non-existent in France. Some ca- 
nonists indeed there are, perhaps a dozen, possibly 
twenty— but speaking generally, the science as well 
as the practice has disappeared. This is a state of 



SECOND PLENA R Y COUNCIL 



things which it is well to face without exaggerating 
its inconveniences, but at the same time without con- 
cealing them. The abolition of all benefices, the con- 
fiscation of ecclesiastical property, the assignment in 
compensation of a salary paid by the State to the 
clergy — such have been the chief causes of the obli- 
vion into which the study of canon law has fallen in 
France. The study declined from the moment that 
the law itself ceased to be practically applicable. On 
the other hand, the administration of episcopal author- 
ity over the clergy is almost exclusively effected by 
means of decisions ex informata conscientia. The 
numerous appeals to Rome, of late years, bear wit- 
ness to this fact; and on many of these occasions the 
proper canonical forms have been omitted, simply from 
ignorance of them. That in the present state of France 
there should be a disposition to avoid — as for instance, 
in the case of any scandal, or of refractory conduct on 
the pare of any member of the clergy — a legal judg- 
ment involving a certain amount of publicity, however 
restricted, we can easily understand. The affair would 
at once be taken up by all the irreligious journals, to 
be blazoned abroad and misrepresented, as a matter 
of course, in order to satisfy the greedy curiosity of a 
million of readers. The decision ex informata con- 
scientia here presents itself as a resource possessing 
obvious advantages. 

" It is certain, however, that it excites mistrust 
amongst the inferior clergy, and opens the door to 
multiplied recriminations. The same may be said 
of the removability of those priests who in France are 
called Desservants or Succursalistes, and who can be 



OF BAL TIMORE. 



369 



transferred from one place to another ad nutum epis- 
copi. Complaints from this cause are no less frequent. 
What may be anticipated with respect to the decision 
of the Council regarding canon law ? Will it reinforce 
the disciplinary decrees of the Council of Trent ? or 
will it introduce, and if so, to what extent, modifica- 
tions adapted to present circumstances? 

" These questions, we believe, form a very special 
subject of the consideration and study of the French 
bishops, who, it must be observed, as well as the clergy 
of the second order, deeply lament the neglect into 
which the study of the canon law has fallen in France." 
(The Year of Preparation for the Vatican Council, 
chap. ix. p. 90. 91, London, Burns, Oates & Co., pub- 
lishers, 1869.) 

411. These lines, from the pen of Her- 
bert Vaughan and other eminent English 
scholars, it would seem, are applicable with 
equal, if not greater cogency, to our eccle- 
siastical status in the United States. 

Canon law appears to be almost forgotten, 
both as a science and as a practical rule of 
discipline. Its forms are not unfrequently 
set aside, simply because they are unknown. 

Again, bishops often proceed against 
priests ex informata conscientia. While in 
some exceptional cases this may prevent 
publicity, it has, in a considerable number 
of instances, brought about the reverse. 



37o 



SECOND PLENARY COUNCIL 



Priests who had been condemned with- 
out any legal form of judgment, and who 
in consequence thought that injustice had 
been done them, appealed to the public 
for redress, by means of the press, and even 
civil courts. 

412. The movableness of pastors is here, 
as in France, a fruitful source of com- 
plaint. In France, however, canonically 
appointed parish priests are not movable, 
while in America no exception is made. 
The grievance is itself the result of an evil, 
which in our humble judgment is far graver 
than the former. 

We mean the total absence or want of 
any fixed and canonical mode of appointing 
and promoting pastors. No canonical test 
either of appointment or promotion seems 
to exist. 

Complaints are made by virtuous, learn- 
ed, and well-deserving priests, that appoint- 
ments to excellent parishes are made at 
hap-hazard ; that learning, virtue, and mis- 
sionary services can give no claim to pro- 
motion ; that strange priests, on coming 
from other countries, are immediately put 
in charge of very important parishes, with- 



OF BALTIMORE. 



371 



out even the formality of a previous ex- 
amination, while the clergymen that are 
brought up in the diocese, and have dis- 
charged laborious duties in it, are left in 
charge of country missions. 

These complaints may be well worthy 
the serious consideration of our bishops, 
than whom none else, certainly, has the wel- 
fare of the Church more at heart. 

413. We shall now inquire chiefly into 
the nature of ecclesiastical punishments, 
and see how far they are applicable to this 
country. 

The Church is a society, at once perfect, 
supreme, and independent. Hence she 
possesses a threefold power, viz., first, the 
legislative power, or that of making laws ; 
secondly, the judicial, or that of defining 
and applying laws ; thirdly, the coercive, 
or the power of compelling rebellious 
members to obedience. 

Wicliff, Huss, Luther, and the other 
Reformers in general contended that the 
Church had but a vague, indefinite, and 
indefinable phantom of authority, wholly 
restricted to the spiritual order. Against 
her coercive power, more than against any- 



372 



SE COND PLENARY COUNCIL 



thing else, they directed their envenomed 
shafts. 

Yet, is it not reasonable that the Church, 
as a perfect society, should be endowed 
with such authority as will enable her to 
punish the insubordinate and repress the 
lawless ? 

We do not here maintain that corporal 
punishments are legitimately inflicted by 
the Church. 

The affirmative opinion on this question 
was held by John de Discastillo (see tract. 
De Cens. disp. i.) ; by Pirhingh. (see Jus 
Eccl. lib. 5. sec. 3. n. 92) ; Bellarmin (lib. 
3. De Laicis, cap. 21. 22.) 

The negative opinion is maintained by 
Kenrick. (See Theol. Dogm. lib. i. tract ii. 
De Eccl. cap. xxii. De Potest. Eccl. p. 262.) 

It is now o;enerallv held that the Church 
can inflict light corporal punishments, such 
as imprisonment in monasteries, and other 
chastisements which are not followed by 
the shedding of blood. (See Sogl. torn. i. 
lib. i. p. 154.) 

414. The coercive power of the Church 
is inherent in the Pope ; in bishops within 
their respective dioceses ; in archbishops 



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373 



within their archdioceses, and, during the 
visitation, all over their provinces, as also on 
appeals to their tribunal ; in bishops eject, 
and confirmed by the Holy See, though 
not yet consecrated; also in vicars general; 
in generals, provincials, and superiors of 
religious houses ; in cathedral chapters, 
sede vacante ; in administrators of dioceses. 
(Bouvier, torn. vi. tract. De Cens.) 

415. It may further be asked, what 
causes fall under courts of ecclesiastical 
jurisdiction ? Blackstone admits, 

That from an early date, it soon became a maxim of 
Papal policy, that ecclesiastical persons and causes 
should be subject to ecclesiastical jurisdiction solely." 
(Blackst. Comment, bk. iii. chap, v.) 

This state of things continued in England 
even after its separation from the Church. 
There the ecclesiastical forum was com- 
posed of the following tribunals : 

1 st. The Archdeacon's Court; an ap- 
peal lies from it to the bishop's court. 

2d. The Consistory Court of every bish- 
op, which was held in the cathedral chapter; 
from its sentence an appeal lies to the 
archbishop of the province. 

3d. The Court of Arches, which is a 



374 



SECOND PLENARY COUNCIL 



court of appeal to the Archbishop of 
Canterbury. 

4th. Court of Peculiars, having jurisdic- 
tion in cases not comprised in the other 
courts. 

5th. Prerogative Court, which settles all 
questions with regard to testaments. 

6th. The King's Court of Appeal, to 
which all finals appeals are made. (Black- 
stone's Comment. 1. c.) 

We see that this is materially the old 
established form of judicature so long ob- 
served in the Catholic Church. This dif- 
ference, however, intervenes between the 
present ecclesiastical judiciary of England 
and Rome, that the king is head of the 
former, while the successor of St. Peter is 
supreme judge of the latter. 

§ 87. CAUSES SUBJECT TO ECCLESIASTICAL 
TRIBUNALS : MODE OF JUDICIAL PRO- 
CEEDINGS IN THE UNITED STATES. 

416. The causes that are subject to ec- 
clesiastical tribunals are the following : 
1 st. All matters of faith and morals. 
2d. The administration of the sacra- 



OF BALTIMORE, 



375 



ments ; doubts with regard to their sub- 
stance ; sacred rites, and the general man- 
ner of administering sacraments. 

3d. Impediments of marriage, though, 
as Kenrick only too truthfully observes, 
bishops are little troubled about such mat- 
ters in this country, as all quarrels of this 
sort are forthwith carried before the civil tri- 
bunals, and thus the internal dissensions of 
families are made public through the press, 
to the scandal of the entire community. 

4th. Crimes of ecclesiastics, committed 
against the law of God or the Church, are 
by divine right subject to the ecclesiastical 
forum. 

417. The mode of procedure in criminal 
causes of ecclesiastics in America, as laid 
down by the Council of St. Louis, is as 
follows : 

" The bishop or vicar general by episcopal com- 
mission chooses two members of the bishop's council, 
changing them from time to time, who shall assist the 
bishop or vicar general in trying the cause, which 
should be done in presence of a notary of the bishop. 

" Both councillors shall have but one vote. If both 
members differ in opinion with the bishop or vicar 
general, the bishop shall select a third councillor, and 
the case shall be decided by his vote or that of the 



376 



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majority. If even then the votes of all the councillors 
should disagree with that of the bishop, the matter 
should be referred to the metropolitan. 

" Both civil and criminal causes brought against 
ecclesiastics, either by other ecclesiastics or by lay- 
men, should be submitted to and adjudged by the 
bishop." (Ken a. Theol. Mor. vol. ii. p. 345.) * 

Moreover, as this author says : 

" All matters having reference to parochial duties, 
and all questions of church property, should be adjudi- 
cated upon by the ecclesiastical tribunal." (Kenr. 1. c.) 

418. Again, Kenrick says: 

" Whatever may be said in regard to the form of 
procedure of ecclesiastical tribunals, can scarcely 
have any other importance in this country than to 
demonstrate how carefully the Church administers 
justice wherever she is allowed by the civil law to 
proceed in a solemn manner. For the rest, it is ar- 
dently to be hoped for, that bishops will adhere to this 
form of judicature as far as circumstances may allow. 
From the fact that causes are not unfrequently dis- 
posed of in a single-handed manner, and without due 
process of law, the numerous mistakes that have been 
committed may easily be explained." (Kenr. 1. c.) 

Again : 

" Sentences pronounced against ecclesiastics with- 

* See Appendix IX., where it will be found that the decree 
of St. Louis is framed on the model of the decree of C. of Trent, 
&ess. xxv. ch. vi. on Ref. 



OF BALTIMORE. 



377 



out due form of law, frequently originate envy and 
discontent among the people." (Kenr. ib.) 

At another time, this author says : 

"There can be no doubt, that a sentence of law 
will carry with it greater weight in proportion as order, 
maturity, and calmness of judgment prevail during the 
investigation, especially when priests of ripe age and 
mature intellect are associated with the bishop, and 
when opportunity is afforded the defendant of vindi- 
cating his conduct. During the visitation of the dio- 
cese, and in those matters that pertain to the correc- 
tion of morals, even when not on the visitation, the 
bishop acts as delegate of the Apostolic See." (Cone. 
Trid. sess. xxiv. cap. x. De Ref. apud Kenr. I. c.) 

" But this faculty applies particularly to clerical 
incontinency. In such cases the bishop may always 
proceed 'sine strepitu et figura judiciaria,' simply ex- 
amining the truth of the statement or fact." (Kenr. 
Mor. vol. ii. tract, xxii. cap. ii. p. 352.) 

419. From this we infer, that although 
bishops in this country may not always be 
able to follow the canonical mode of pro- 
cedure in the strictest sense of the term, 
yet is it incumbent on them, according to 
the decrees both of provincial and national 
councils, to adhere to the normal judiciary 
form of the Church, and but rarely to ad- 
mit of exceptions to this rule. 



378 SECOND PLENAR Y CO UNCIL 



§ 88. NORMAL CONDITION OF ECCLESIAS- 
TICAL JUDICATURE. 

420. It may not be altogether void of 
interest here to examine into the provisions 
of the normal and common law of the 
Church, on this point. 

In every trial, whether civil or ecclesias- 
tical, there must be plaintiff, defendant, and 
judge. The first of these institutes pro- 
ceedings against the second, by means of 
his complaint, set forth in a declaration, 
termed in the civil court " affidavit " — and 
libellus or statement in the ecclesiastical 
forum. 

The defendant, that is, he against whom 
the allegations are advanced, either admits 
or denies the statements contained in the 
" affidavit." 

If he admits them, sentence may be pro- 
nounced forthwith. If he denies them, the 
law-suit begins, that is, testimony is taken.* 

It then becomes the duty of the plaintiff 
to prove by unexceptionable testimony the 
truth of his accusations. 

* This is termed " contestatio litis." 



OF BALTIMORE. 



379 



421. The body of proof may consist of 
these : 

1 st. An oral admission on the part of 
defendant. 

2d. Ocular witnesses. 

3d. Instruments, such as documents 
either of a public or private nature. 

When the complainant has set forth and 
sustained his charges, it becomes the duty 
of defendant to respond to them. 

The judge finally decides the case ac- 
cording to the arguments adduced by 
either side. 

422. We add a few words on each of 
these persons. 

The plaintiff, as we have seen, makes the 
charges. Now, in ecclesiastical causes, 
accusations are frequently made by lay- 
men. It may not be out of place, there- 
fore, to quote the saying of St. Paul : 

" Against the priest, receive not an accusation, but 
under two or three witnesses." (1 Tim. v. 19.) 

Great care should be taken not to listen 
too readily to complaints advanced by 
the people. Malice and insubordination 
but too often prompt the most unjust 



SECOND PLENARY COUNCIL 



and groundless allegations of parishioners 
against their pastor. 

An instance of this is given in the life 
of the saintly Prince Gallitzin. Though 
his career was one of continual mortifica- 
tion and self-denial, yet accusers were not 
wanting who misconstrued his best actions, 
and laid grave imputations to his character. 

But the venerable Carroll, who was at 
that time (1807) the only bishop in Amer- 
ica, was too well acquainted with the solid 
virtue and sterling qualities of the prince- 
priest to be shaken in his esteem for Father 
Gallitzin by those infamous calumnies. 

423. We take pleasure in making a few 
extracts, in this matter, from the excellent 
" Life of Gallitzin," by S. M. Brownson. 

On May 11, 1807, Father Gallitzin wrote 
to Bishop Carroll : 

" E. V. J. is returned from Baltimore, and already 
the news is in circulation that Mr. De Barth and Mr. 
Dubois are to be up immediately to judge me. I shall 
be very happy to see them or any other clergymen you 
would choose to send, although it would be a little 
hurtful to my feelings that they should come under 
that title. This is the only favor I shall beg of your 
lordship . . . that you will not allow every person to 
be a witness, but that you will lay down rules by 



OF BAL TIMORE. 



381 



which the priests appointed may know who can be 
allowed to appear as a witness against a clergyman, 
and who not." (Life, p. 241.) 

" At another time, when the last delegates or com- 
mittee called upon Bishop Carroll to state their griev- 
ances, they found less courteous reception than was 
formerly accorded to the humblest backwoodsman 
who entered that dignified but fatherly presence : the 
bishop listened to their stories in unbroken silence, 
and when the full amount of their venom had been 
poured out, and they paused for an answer, he turned 
to them, it is said, with the calm inquiry, ' Is that all 
you have to say ? ' They admitted it was, and then 
quietly rising, he wished them good-day, and looked 
after them, as they awkwardly got out of the room, 
neither with anger nor contempt, but, if the truth must 
be told, with much the same absence of emocion with 
which one would look after some cowardly specimen 
of the canine species who had ventured on forbidden 
ground." (Life, p. 248.) 

424. The defendant is the one against 
whom the charges are directed. When 
the affidavit has been made, and such 
proof exhibited as will justify the bishop 
to institute proceedings, the citation, or ar- 
rest as it is termed in civil jurisprudence, 
whether verbal or real, follows. This cita- 
tion or summons is a warning to appear in 
court ; or a written notification signed by 
the proper officer, to be served on a per- 



382 SECOND PLENAR Y CO UNCIL 

son, warning him to appear in court at a 
day specified to answer the plaintiff. 

It is twofold : verbal and real. The 
first consists in notifying the defendant, 
either by simple letter or by formal writ, 
to appear in court. 

This instrument must have the name of 
the plaintiff, defendant, and judge ; the 
cause of the summons ; the place of ap- 
pearance, and the time of trial. 

If the accused refuses to appear without 
alleging sufficient reasons, the court will 
consider him contumacious, as showing 
contempt of its jurisdiction, and will there- 
fore proceed with the trial without any fur- 
ther delay. 

Real citation is the actual apprehension, 
arrest, or imprisonment of defendant, with 
the view to make him appear at court. 
This is resorted to when it is feared that 
he will otherwise escape. 

425. These remarks apply with equal 
cogency to ecclesiastical judicature. As in 
civil, so in ecclesiastical judicatories, the 
bishop may compel plaintiff and defendant 
to take an oath not to allege anything 
which either of them knows to be false ; 



OF BALTIMORE 



383 



in other words, testimony may be admitted 
under oath only. (Kenr. Mor. vol. ii. tract, 
xxii. cap. ii.) 

In formal trials, the oath is generally 
administered to all witnesses ; in informal 
causes, it may be dispensed with. 

426. From what has been said, we infer 
the following : 

1 st. Judicial proceedings of ecclesiasti- 
cal courts are similar to those of civil tri- 
bunals, though the latter borrowed from 
the former. A priest, therefore, who is 
accused of some crime, should be informed 
who his accusers are, and what the nature 
of the complaint may be. In this respect, 
as we have seen, Archbishop Spalding 
was a model of frankness to priests, worthy 
of imitation. 

2d. The defendant should be afforded 
ample opportunities of repelling the 
charges made against him, not merely in- 
cidentally, but formally, and in open court. 
This should be done especially when 
priests are concerned. 

3d. When pastors of souls and other 
clergymen are the defendants, it may not 
always be expedient to confront them with 



384 



SECOND PLENARY COUNCIL 



their accusers when these are laymen ; yet 
they should none the less be accurately in- 
formed of the allegations made against them, 
so as to be able to plead their own cause. 

4th. This will be attained by carefully 
observing the decree of the Council of St. 
Louis, which prescribes that the bishop or 
vicar general should associate with him- 
self two of the elder and experienced priests 
of the diocese in the hearing of the case. 
Priests who are accused should be allowed 
to bring their arguments of defence before 
this tribunal. 

427. The office of ecclesiastical judge 
is twofold : ordinary and delegated. Or- 
dinary judges are termed by canonists 
those who exercise jurisdiction, not by any 
special delegation or commission, but by 
virtue of their dignity or office. Such are 
bishops and inferior prelates of religious 
orders ; also vicars general of bishops, 
either because of the jurisdiction they ex- 
ercise, or as taking the place of the bishop. 
An ordinary judge can render decisions in 
his own name and authority, which he may 
also intrust to capable persons. All ordi- 
nary cases fall under his jurisdiction. 



OF BAL TIMORE. 



385 



" In this country, however, a vicar general cannot 
preside at a trial except he be specially commissioned 
by the bishop." (Kenr. Mor. vol. i. p. 345.) 

428. The offences that may be com- 
mitted by ecclesiastics are either criminal 
or civil. The former regard a breach of 
the law of God or the Church ; the latter 
have reference to ecclesiastical property 
and endowments. 

§ 89. CLERICS IMPLEADING ONE ANOTHER 
IN CIVIL COURTS. 

429. We pass to another question : Can 
one ecclesiastic go to law against another 
ecclesiastic ? Formerly, this was allowed 
in no case. At present, the rigor of this 
sanction is to some extent mitigated. 
Kenrick says : 

"The authority of the Church has been greatly 
restricted in many, even Catholic countries ■ and ec- 
clesiastics are now permitted to plead in various civil 
courts." (Mor. vol. ii. p. 347.) 

430. Again, this author observes: 

" The Sacred Congregation of Propaganda has 
modified the decree of the Provincial Council of Balti- 
more, with regard to the censures incurred by those 

2*5 



3 86 



SECOND PLENARY COUNCIL. 



who carry before lay tribunals such causes as pertain 
to the ecclesiastical forum, and the same Congrega- 
tion commanded that the decree should read thus : 

" Whereas, grave scandals are given to the faithful, 
and serious injury inflicted on the clerical character, 
by bringing these causes before civil tribunals, we ex- 
hort all whom it may concern, amicably to arrange, or 
at least, to submit to the bishop, controversies arising 
among them, with regard to ecclesiastical matters or 
persons. But if any ecclesiastical person of either 
sex should rashly cause to be summoned before a lay 
tribunal, any other clerical or religious person of either 
sex, concerning matters strictly ecclesiastical, let him 
know, that he incurs the censures of the Church." 
(Apud Kenr. 1. c. p. 347.) 

431. From this we infer: 

1st. That laymen do not incur any cen- 
sure by bringing matters, even of a strictly 
ecclesiastical nature, into lay courts. Yet 
they might commit sin, in thus causing 
grave scandal, and exposing the sanctity 
of religion to ridicule and contempt. 

2d. That clerics may also have recourse 
to civil tribunals for serious reasons in re- 
gard to matters not exclusively ecclesias- 
tical. 

3d. That in causes not purely ecclesias- 
tical, any cleric or religious of either sex 
may implead another religious or ecclesi- 



OF BA L TIMORE. 



387 



astical person of either sex. Yet should 
this be done only when every other rem- 
edy has failed. 

4th. That even in matters of a purely 
spiritual character, one cleric may sue an- 
other, if this is not done rashly, but for 
imperative reasons. 

5th. When, however, ecclesiastics or re- 
ligious of either sex implead each other 
rashly, that is, without having previously 
sought redress from the proper ecclesias- 
tical tribunal, or without any very urgent 
cause, in matters solely and exclusively 
falling under the jurisdiction of the Church, 
they incur the censures. 

432. We subjoin an instance to illustrate 
this doctrine. In Ireland, not long ago, a 
priest was suspended by Cardinal Cullen 
for the reason thus given in the cardinal's 
own words : 

" The plaintiff (the priest in question) bound him- 
self to obey the ordinances of the Church. One of 
these ordinances forbids one ecclesiastic to implead 
another ecclesiastic before a civil tribunal for slander 
spoken of the complaintant in his character of a priest. 
Rev. Mr. O'Keeffe violated that ordinance, and there- 
fore I suspended him." 

The latter must be well borne in mind, 



?88 



SECOND PLENARY COUNCIL 



as it was not simply for impleading an eccle- 
siastic on account of slander that Rev. Mr. 
O'KeefFe was suspended, but because the ju- 
dicial action instituted by him in civil courts 
was for slander that had reference to his 
clerical reputation, and was therefore an 
offence cognizable in ecclesiastical courts 
only. Hence Judge Barry in his decision 
fully sustained the cardinal. After touch- 
ing on the arguments of complainant, to 
wit, that the ordinance prohibiting one ec- 
clesiastic from impleading another eccle- 
siastic before a civil tribunal was void and 
null, the learned judge said : 

" If it were res integra, he would say that it was not 
contrary to public policy that there should be a rule 
prohibiting ministers of religion from bringing actions 
against each other for libel. He should rather say 
that the existence of such a rule would be beneficial 
in preventing scandals, and putting an end to proceed- 
ings injurious to religion and morals.'' 

433. The slander in question was an ac- 
cusation, made by the tw T o curates of Rev. 
Mr. O'Keefife, with regard to certain irreg- 
ularities committed in the performance of 
his pastoral duties, such as not giving a 
proper account of moneys received, etc. 



OF BAL TIMORE. 



339 



These allegations were brought before 
the bishop. As will be seen, they had 
reference to violations of the canons of the 
Church, and hence were of a strictly eccle- 
siastical nature. Therefore, in no sense 
could they be taken into a civil court. 

Whether the above curates were either 
in justice or charity justifiable in ad- 
vancing these charges, we shall not here 
discuss. 

434. A similar case happened not long 
ago in this country. A priest was sus- 
pended by his bishop for not being able to 
give a proper account of church moneys, 
and for various other supposed delinquen- 
cies. He appealed to the civil courts for 
redress. 

The bishop's position, however, we be- 
lieve, was ultimately sustained by the Su- 
preme Court of the State, which laid down, 
or rather confirmed and gave additional 
legal force to the principle that each reli- 
gious denomination has full authority over 
its own members, and administers its affairs 
according to its own laws. In other words, 
all religious associations, like other bodies 
corporate, possess autonomy in their own 



SECOND PLENAR Y COUNCIL 



sphere. Common sense also teaches this, 
for while men are free, at least physically, 
to select any religion they please, yet once 
they have become members of any church, 
they must abide by its rules as long as 
they are members of it. 

435. Prescinding from purely ecclesias- 
tical matters, many cases occur when one 
ecclesiastic can implead another before a 
civil tribunal. An injury, for instance, in 
personal property, or an imputation of a 
crime, affecting not merely the clerical, 
but also the civil character of clergymen, 
would constitute a case in point. Still no 
one will deny, that as a general rule it is 
better not to have recourse to civil tribu- 
nals in these things. 

These rules, however, do not apply to 
law-suits between ecclesiastics and laymen. 
Any clergyman may institute proceed- 
ings against a layman for injuries of any 
kind. 

Moreover, the decree of the Sacred 
Congregation does not forbid ecclesiastics 
from impleading each other, even in eccle- 
siastical matters, except when this is done 
rashly, " temere*" 



OF BALTIMORE. 



391 



§ 90. CENSURES : VARIOUS KINDS OF 
CENSURES. 

436. We pass to the censures inflicted 
by the Church. 

" A censure/' says Kenrick, " is an ecclesiastical 
and medicinal punishment, depriving a baptized per- 
son, who is delinquent and contumacious, of certain 
spiritual benefits, committed to the dispensation of 
the Church, until remission of the guilt is obtained." 
(Kenr. Mor. vol. ii. tract, xxii. De Cens. p. 353.) 

Censures are divided into such as are 
" a jure" and " ab homine." The former 
are those which are imposed either by the 
general law of the Church, or by perpetual 
statute, whether it emanate from the Su- 
preme Pontiff, or merely from a bishop. 

437. Some canonists restrict censures "a 
jure" to such only as are inflicted by the 
universal or common law of the entire 
Church. We prefer to hold that, together 
with the above, all those which are laid 
down by any permanent episcopal statute 
are also censures "a jure." 

This view is maintained by Kenrick : 

" A censure," he tells us, " ' a jure,' is that which is 
enacted by some general law or perpetual statute, 



39 2 



SECOND PLENARY COUNCIL 



whether it be by the Sovereign Pontiff, or by a bish- 
op. 7 ' (Mor. vol. ii. p. 353=) 

" Censure 6 ab homine ' is that which is made in 
the form of a precept, imposed on one or more indi- 
viduals, or which has the form of a judicial sentence.'' 
(Kenr. 1. c.) 

" Those censures which are contained in the canon 
law, or in the pontifical decrees, outside the body of 
canon law, or in diocesan statutes, are called 6 a jure • ' 
those which are imposed by the bishop on a guilty in- 
dividual are termed 'ab homine.' " (lb.) 

Censures " a jure " do not cease to bind 
when the legislator dies : those " ab hom- 
ine," however, are no longer of force at 
the death of the lawgiver from whom they 
emanated. 

438. To incur a grave censure, these 
conditions are requisite : 

1 st. A mortal sin. 

2d. An external action. 

3d. That the action prohibited under 
censure, be full and complete in its kind. 

4th. Contumacy. 

Slight censures, such as withdrawing fac- 
ulties, or suspension for a very brief space 
of time, may be imposed for sufficient rea- 
sons ; nor is it necessary that all the above 
conditions should concur in them. 



OF BAL TIMOR E. 



393 



439. Case. — A Catholic woman has con- 
tracted marriage with a Protestant gentle- 
man, before a sectarian preacher — u coram 
praecone protestantico " — in the Diocese of 
Newark, or in any other diocese where this 
offence entails excommunication ipso facto 
incurrenda, and reserved to the bishop. 

Suppose this person, whom we shall call 
Constantia, while travelling over Eutope, 
to meet a priest, and anxiously ask his ad- 
vice how to obtain absolution. She tells 
him that she has not gone to confession for 
a number of years, owing to the fact, that 
soon after her marriage, she applied to 
several confessors, but that all of them 
said that she must go to the bishop, who 
alone could absolve her from the censure 
she had incurred. What advice should be 
given to Constantia ? The reply is given 
in the following paragraph. 

§ 91. RESERVATION OF CENSURES. 

440. Before developing the solution of 
the above case, we premise : 

1 st. All censures contained in diocesan 
statutes are termed, as we have seen, 



394 



SECOND PLENARY COUNCIL 



'a jure,' and can therefore be relaxed by 
any bishop or priest having jurisdiction. " 
(Kenr. Mor. vol. ii. p. 361.) 

This view, we are aware, is disputed by 
some jurists, who contend that these cen- 
sures are to be classed with those " ab 
homine," and which are therefore capable 
of being loosened only by the prelate that 
has inflicted them. Yet strong arguments, 
both intrinsic and extrinsic, stand in favor 
of our position. We take it, in consequence, 
to be a probable opinion. 

2d. But in our case, the excommunica- 
tion is reserved. Hence, like censures " ab 
homine,'' it cannot be remitted save by 
those from whom it emanated. 

3d. The archbishop of the province has 
no power over the censure of suffragan 
bishops, save on legal interpellation, or in 
the visitation of a diocese undertaken by the 
authority of a provincial council. (Kenr. 
Mor. vol. ii. p. 361.) 

4th. It may be added that bishops can 
everywhere, even out of their dioceses, re- 
move censures from subjects, both in and 
outside the confessional, provided it can 



OF BAL TIMORE. 



395 



be done without any external judicial pro- 
ceedings. (Kenr. 1. c.) 

5th. Absolution from censures may be 
imparted to one who is absent, or at a dis- 
tance ; hence it may be obtained through 
letters. This can be done, however, for 
grave reasons only ; and a procurator or 
proctor is generally appointed to confer 
the absolution. (Kenr. L c.) 

Some have asked whether the absolution 
could not be given by telegraph. Yet this 
would not appear to be admissible, espe- 
cially as telegrams are easily misconstrued 
and changed. 

6th. Ignorance of the existence of the 
law itself, or of its penal character, exempts 
delinquents from censures, papal as well as 
episcopal. Hence, whoever is unaware or 
in doubt, either that he committed the act, 
or that it was prohibited under censure, 
does not incur the penalty. 

441. But to this it may be objected 
that episcopal censures, when reserved, in- 
volve reservation of sin also ; that, in fact, 
the reservation is the essential element, 
whilst the censure is but accidental ; that, 
therefore, the reservation, which is but a 



39 6 



SECOND PLENARY COUNCIL 



limitation of jurisdiction of the confessor, 
deprives him of the faculty of absolving, no 
matter whether the delinquent be informed 
of the censure or not, whether he be con- 
scious of the fact and law, or whether he 
be entirely and innocently ignorant of the 
existence of either. This process of reason- 
ing is, however, by no means so certain as 
would appear at first sight. In fact, there 
are two opinions : one maintains, with St. 
Liguori, that reservation, is a restriction of 
jurisdiction on the part of the confessor, 
directly affecting the priest, and but in- 
directly the penitent. Hence it is inferred 
that reservation obtains even when the 
penitent is ignorant of it. 

The second opinion holds, on the con- 
trary, that the reservation is always penal, 
and that in consequence it is not incurred 
by delinquents who are uninformed of it. 
(See Lugo, De Pcenit. ; Sanchez, De Matr. ; 
Sporer, apud Bellarmin ; Notes on Gury, 
vol. ii. p. 369. edit. Ball. Romae, 1869.) 

442. To this opinion we adhere. Nor 
do we think it sufficiently refuted in the 
Vindiciae Alphonsianae, p. 520, pars v. 
quaest. 12. art. 3.) 



OF BALTIMORE, 



397 



For even were we to admit, with St. Al- 
phonsus, that reservation is a restriction of 
jurisdiction, and that it therefore directly 
affects the confessor and but indirectly the 
penitent, this would not decide the question 
whether this restriction of jurisdiction is 
of force also when ignorance of the penal 
law intervenes. It would seem utterly use- 
less to apply to individuals a law whose ex- 
istence is entirely unknown to them. 

This is the argument advanced by Father 
Ballerini, and we think it remains untouch- 
ed by the reasoning of the authors of the 
Vindiciae. 

443. Constantia, therefore, to return to 
our case, if ignorant of the episcopal cen- 
sure and reservation at the time of her 
marriage, incurred neither. If, however, 
she was aware of the law, and its penal 
character, she is bound by the censure, and 
can be absolved only by her ordinary or 
the Pope ; appearing either personally be- 
fore them, or at least by letter or proxy. 

Should both these conditions be imprac- 
ticable, or involve tedious delay, Constan- 
tia could go to confession to any priest 
having jurisdiction, in order to comply with 



398 



SECOND PLENARY COUNCIL 



the paschal precept, or extricate herself 
from the state of mortal sin. 

The Church suspends her laws for such 
reasons, as she has received her power from 
Christ, not unto destruction, but unto the 
edification of the members of Christ's mys- 
tical body. 

444. Any confessor, therefore, can ab- 
solve her " pro hac vice." Nor, is she even 
bound to confess that sin which is reserved, 
in this confession, as the priest has no power 
over it, and absolves her but indirectly from 
it, and as she is obliged to declare the sin in 
question to the superior who can remove 
the censure. 

Better, no doubt, it will be to confess the 
reserved sin, even to the confessor who 
has no jurisdiction over it. But necessary 
to the validity of the sacrament it is not. 

§ 92. SUSPENSIONS IN GENERAL: SUSPEN^ 
SION EX INFORMATA CONSCIENTIA. 

445. We pass to the other censures of 
the Church. 

A suspension is an ecclesiastical censure, 
by which a cleric is prohibited the exercise 



OF BALTIMORE. 



399 



of an ecclesiastical office or benefice, or 
both. Suspension from office (ab officio) 
deprives an ecclesiastic of the exercise of 
the authority inherent in his office or 
charge. Again, clerics may be suspended 
from the exercise of functions of order ; as, 
for instance, saying mass. And yet, they 
may not be forbidden to hear confessions. 

And again, the contrary may take place. 
One may be allowed to say mass, and yet 
be inhibited from hearing confessions. 
Suspension generally includes both, unless 
otherwise stated. A violation of the sus- 
pension entails irregularity. 

446. Suspension should be imposed, like 
every other censure, only after a mature 
investigation of the cause set forth in writ- 
ing, and after the defendant or accused 
party has been heard. " (Bened. XIV. ut 
infra.) 

" Yet, at times," continues this great pon- 
tiff, " it is inflicted without the observance 
of legal forms of procedure, or ex infor- 
mata conscientia." (De Synod. Dioc. 1. xii. 
cap. viii. n. 3-5.) 

447. Our American theologian says : 

" Nor is the bishop bound in such a case to render 



SECOND PLENARY COUNCIL 



an account of his action, except to the Supreme Pon- 
tiff. An appeal to the metropolitan would be null 
and void. This manner of suspending should be but 
rarely made use of, and for occult crimes only, and 
not otherwise, as it is outside the ordinary course of 
justice : it is advisable, therefore, not to parade such 
powers in a synod." (Kenr. Mor. vol. ii. p. 374-) 

This author adds : 

"In this country, bishops are accustomed to 'revoke 
faculties ' granted to missionaries whenever they judge 
priests to be unworthy of their office ; because, as a 
general rule, they observe no form of ordinary judica- 
ture, which, however, should be done hereafter, as 
the Sacred Congregation de Propaganda Fide points 
out, by approving the decree of the Council of St. 
Louis, on criminal causes of ecclesiastics. This re- 
vocation of faculties many distinguish from suspen- 
sion." (Kenr. 1. c.) 

448. We append the following from the 
same illustrious writer: 

" Many grave reasons exist why bishops should re- 
voke faculties without assigning any reason, or with- 
out due process of law, that is, ex informata conscien- 
tia \ for witnesses are frequently unwilling to testify 
in public, lest they should imperil their good name 
or incur odium ; and again, the crimes of ecclesiastics 
easily become divulged upon an investigation made 
in a formal trial, and in the presence of several wit- 
nesses, and thus scandal is given to the faithful, and 
matter of triumph afforded to heretics : occasions of 



OF BALTIMORE. 



4OI 



appealing to the metropolitan would thus be fre- 
quently furnished priests, who would be continually 
recurring to him with the evidences of their innocence : 
ecclesiastical misdemeanors would thus become more 
extensively noised abroad, the authority of bishops 
would be slighted and set at naught, and opportunity 
given of bringing such matters before the civil magis- 
trate." (Kenr. Mor. vol. ii. p. 375.) 

449. This, it would seem to us, with all 
deference to the great American prelate, is 
exaggerating the reasons for this abnormal 
and extraordinary manner of proceedings, 
which nevertheless is so universally adopted 
by the American episcopate. It seems no 
longer to be the exception, as canon law 
would have it : it has become emphatical- 
ly the rule followed by the bishops of this 
country. 

Kenrick mildly censures this custom in 
the following terms : 

" But, speaking frankly, when no form of judicature 
is adhered to, opportunities are furnished of decrying 
bishops as doing everything in an arbitrary manner ; 
and by practically cutting off the right of appeal to the 
metropolitan, no other chance of redress is left the ac- 
cused, save that of going to Rome. 

"Hence, I think suspension should not be imposed 
on any ecclesiastic except by due form of canonical 
procedure, at least as far as circumstances will allow ; 
26 



402 



SECOND PLENARY COUNCIL 



so that the defendant may appeal to the metropolitan 
if he so chooses ; by his judgment any injury that may 
have been done the defendant can easily be remedied, 
should his bishop have been mistaken in the case; or 
also it will render still more apparent the crime of the 
accused, and at the same time show all that a second 
opportunity of self defence has been given." (Kenr. 
Mor. vol. ii. p. 375.) 

450. To make still more impressive what 
our American theologian says, and to point 
out how careful bishops should be in pro- 
ceeding with criminal causes of ecclesiastics 
without following the usual form of law, or, 
in other words, acting ex informata consci- 
entia, we shall quote from Benedict XIV., 
as follows : 

a At times, circumstances will occur of such a na- 
ture, as have not been foreseen or contemplated by the 
common law, which, therefore, by a certain epikeia, 
would seem, by tacit permission of the law itself, to 
allow the bishop to relax the common law, or overlook 
to a certain extent its severity, especially when the 
thing does not admit of delay, and the Sovereign Pon- 
tiff cannot be consulted, nor his supreme authority in- 
voked." (See Bened. XIV. De Synod. Dioc. lib. xii. 
cap. viii. n. 1-3.) 

Again, this illustrious writer says : 

" Yet it is not on that account lawful for a bishop 
to put forth this power, which attaches to him merely 



OF BALTIMORE. 



403 



by virtue of the benignity and indulgence of the 
common law, in his synod, or in any way parade it, 
laying down, namely, as a general statute, what is 
allowable in a very special case only : that would 
indeed savor strongly of ambition and rashness." 
(Bened. xiv. 1. c.) 

451. Now what means the phrase ex 
informata conscientia ? Benedict XIV., 
casually explaining this point, says : 

" That when the bishop knows an occult crime, 
whether altogether outside the ordinary forms of judi- 
cature — extraj udicialiter — or in any other way what- 
ever — quomodolibet — he may either refuse giving holy 
orders, or suspend the delinquent from the exercise 
of an order already received." (Ib.) 

452. From this we draw the following 
conclusions : 

1 st. The phrase " ex informata conscien- 
tia" means simply an information gained 
privately, in any manner whatever, outside 
the ordinary course of a trial or judicial 
proceedings. 

Suspension, therefore, ex informata con- 
scientia, signifies the censure inflicted by 
the bishop, not upon the verdict or deci- 
sion arrived at by a public trial, but upon 
an incontrovertible private information. 

2d. Suspension ex informata conscien- 



A04 SECOND PLENARY COUNCIL 

tia, that is, inflicting the censure without 
observing any form of legal proceedings 
in the investigation of a cause, and its deci- 
sion, but acting from a private knowledge 
of the crime, is not contemplated in, or 
even explicitly sanctioned by the common 
law ; it is, therefore, an exception to the 
ordinary rule. 

3d. It applies merely to occult crimes. 

4th. The private knowledge or informa- 
tion of the bishop must not be founded 
upon mere conjecture, but upon moral 
certainty. Nor is it sufficient that an ac- 
cusation should be brought before the 
bishop by a few hot-headed and factious 
parishioners, who are but too frequently 
disposed to grumble at everything done 
by the parish priest. An indubitable and 
certain information is essential. 

5th. Even in regard to occult crimes, 
this mode of procedure should be adopted 
only when scandal to the faithful or matter 
of triumph to heretics, and serious injury 
to the Church, would be the result of an 
ordinary trial. 

6th. This judicatory, therefore, of private 
information does not apply to all cases. 



OF BALTIMORE. 405 

Bishops who extend it to all crimes, mak- 
ing it their ordinary rule of action instead 
of the exception, grievously offend against 
the common law of the Church, as was 
decided by Benedict XIV. 

7th. The bishops of America, conse- 
quently, are bound to observe the decree 
of the Council of St. Louis, which is sanc- 
tioned by the Holy See, and which pro- 
vides for a fair trial, to be conducted by 
the bishop or vicar general and two priests 
selected by them, so that the defendant or 
accused ecclesiastic may have a chance of 
defending himself, and, if need be, of ap- 
pealing to the metropolitan. 

8th. As long as the above decree is not 
enforced and complied with by the prelates 
of this country, every priest must be sim- 
ply at the mercy or caprice of his bishop, 
and, practically speaking, little if any pro- 
tection against slander and injustice is left 
him. 

Is it marvellous that, under such circum- 
stances, redress should at times have been 
sought in lay tribunals ? Would not the 
most effective means of preventing ecclesi- 
astical matters from being carried into lay 



406 



SECOND PLENARY COUNCIL 



courts, consist in conforming to the wise 
provisions of ecclesiastical law ? 

Would not in this manner a considerable 
number of unjust sentences upon innocent 
priests be avoided ? 

453. All objections to the contrary, we 
think, can only be of little weight when 
compared with the pernicious effects of 
judicatories ex informata conscientia. 

To facilitate normal canonical proceed- 
ings, the following may not come amiss. 

Formerlv, when accusers were wanting: 
or unwilling to appear in public, the bishop 
would appoint certain priests to act as 
plaintiffs, so as to enable the parties to go 
on with the trial. (Walt. Jus Can. p. 372.) 
This is somewhat similar to the office of 
State or district attorney of civil courts. 
And it is but another proof of the anxiety 
of the Church to procure a fair and impar- 
tial trial for defendants. 

We now draw to the close of our labor. 
We humbly trust that the Father of mer- 
cies and the God of all consolation, who 
comforteth us in all our tribulations, will 
one day, at the end of our mortal pilgrim- 
age, and when the time of our dissolution 



OF BALTIMORE. 



407 



is at hand, give us, in His infinite goodness, 
a place among the blessed in heaven. 

If, in these pages, we have uttered any- 
thing, even in the slightest degree at vari- 
ance with the teachings of Holy Church, 
we hereby unreservedly retract it, and sub- 
mit ourselves to the infallible judgment of 
the Roman Pontiff, the Successor of St 
Peter. 



APPENDIX. 



CONTENTS OF APPENDIX. 



I. 

PAGE 

Syllabus of 1864, 413 

II. 

Primacy of the Roman Pontiff. (Note to Chapter III. § 9.) 427 

III. 

Of Secular Priests entering Religious Communities. — Is the 
permission of the Ordinary requisite ? (Note to Chapter 
VI. § 20.) 430 

IV. 

Promulgation of the Tridentine Decree on Clandestine 

Marriages, in Ireland. (Note to Chapter XXI. § 67.) . 433 

V. 

Can Individual Theologians and Canonists comment on 
the Acts and Decrees of Councils, whether Ecumenical, 
National, or Provincial ? . . 436 



[12 



CONTENTS OF APPENDIX. 



VI. 

: 

Instructio edita jussu Sacrse Congregationis de Propaganda 
Fide de Conjugiis. Romse, 1821. (On Clandestine 



Marriages.) (For Chapter XXI. § 67.) 439 

VII. 

Decretum, on Clandestine Marriages, given at Rome, Sept. 
9, 1824. Sent, in response, to the Bishop of New 
Orleans. (For Chapter XXI. § 68.) 452 

VIII. 

Facultates quae Episcopis nostris concedi solent : 

Facultates, Form. 1 463 

Facultates Extraordinarise C 469 

Facultates Extraord. D 472 

Facultates Extraord. E 474 



IX. 

§ I. Ecclesiastical Trials in the United States. — Priests 
should always be associated with Bishops in 
conducting Causes. — Oath administered to them. 
(Note to Chapter XXVIII. § 87.) .... 476 

§ 2. Civil Juries. — Analogy between Civil and Canon 

Law, 478 

§ 3. Testimony given on oath in Ecclesiastical no less 

than in Civil Causes, 480 



APPENDIX. 



Syllabus, issued in 1864, embracing the principal 
Errors of our time, which are censured in Consis- 
torial Allocutions, Encyclicals, and other Apostolic 
Letters of our Most Holy Father Pope Pius IX. 

§ *• 

Pantheism, Naturalism, and Absolute 
Rationalism. 

I. There exists no supreme, all-wise, and most 
provident divine Being distinct from this universe, 
and God is the same as the nature of things, and 
therefore liable to change ; and God is really made 
both in man and in the world, and all things are God 
and have the self-same substance of God ; and God 
is one and the same thing with the world, and there- 
fore spirit is the same thing with matter, necessity 
with liberty, truth with falsehood, good with evil, and 
just with unjust. 

II. All action of God on mankind and on the 
world is to be denied. 

III. Human reason, without any regard what- 
ever being had to God, is the one judge of truth and 
falsehood, of good and evil ; it is a law to itself, and 



4H 



APPENDIX. 



suffices by its natural strength for providing the good 
of men and peoples. 

IV. All the truths of religion flow from the 
natural force of human reason ; hence, reason is the 
chief rule whereby man can and should obtain the 
knowledge of all truths of every kind. 

V. Divine revelation is imperfect, and therefore 
subject to a continuous and indefinite progress cor- 
responding to the advance of human reason. 

VI. The faith of Christ is opposed to human 
reason ; and divine revelation not only nothing profits, 
but is even injurious to man's perfection. 

VII. The prophecies and miracles recorded and 
narrated in Scripture are poetical fictions, and the 
mysteries of Christian faith a result of philosophical 
investigations ; and in the books of both Testaments 
are contained mythical inventions ; and Jesus Christ 
himself is a mythical fiction. 

§ 2. 

Moderate Rationalism. 

VIII. Since human reason is on a level with 
religion itself, therefore theological studies are to 
be handled in the same manner as philosophical. 

IX. All the dogmas of the Christian religion 
are without distinction the object of natural science 
or philosophy ; and human reason, with no other than 
an historical cultivation, is able from its own natural 
strength and principles to arrive at true knowledge 
of even the more abstruse dogmas, so only these 
dogmas have been proposed to the reason itself as 
its object. 



APPENDIX. 



X. Since the philosopher is one thing, and phi- 
losophy another, the former has the right and duty of 
submitting himself to that authority which he may 
have approved as true; but philosophy neither can 
nor should submit itself to any authority. 

XI. The Church not only ought never to ani- 
madvert on philosophy, but ought to tolerate the errors 
of philosophy, and leave it in her hands to correct 
herself. 

XII. The decrees of the Apostolic See and of 
Roman Congregations interfere with the free progress 
of science. 

XIII. The method and principles whereby the 
ancient scholastic doctors cultivated theology are not 
suited to the necessities of our time and to the pro- 
gress of the sciences. 

XIV. Philosophy should be treated without re- 
gard had to supernatural revelation. 

N.B. To the system of Rationalism belong mostly 
the errors of Anthony Giinther, which are condemned 
in the Epistle to the Cardinal Archbishop of Cologne, 
" Eximiam tuam," June 15, 1857, and in that to the 
Bishop of Breslau, " Dolore haud mediocri," April 30, 
i860. 

§ 3- 

Indifferentism, Latitudinarianism. 

XV. Every man is free to embrace and profess 
that religion which, led by the light of reason, he 
may have thought true. 

XVI. Men may in the practice of any religion 
whatever find the path of eternal salvation, and 
attain eternal salvation. 



416 



APPENDIX. 



XVII. At least good hopes should be enter- 
tained concerning the salvation of all those who in 
no respect live in the true Church of Christ. 

XVIII. Protestantism is nothing else than a 
different form of the same Christian religion, in which 
it is permitted to please God equally as in the true 
Catholic Church. 

§ 4- 

Socialism, Communism, Secret Societies, Bible 
Societies, Clerical Liberal Societies. 

Pests of this kind are often reprobated, and in 
the most severe terms, in the Encyclical "Qui plu- 
ribus," November g, 1846; the Allocution " Quibus 
Quantisque," April 20, 1849 \ tne Encyclical " Nos- 
citis et Nobiscum," December 8, 1849 • the Allocu- 
tion " Singular! quadam," December 9, 1854 ; the 
Encyclical " Quanto conficiamur," August 10, 1863. 

§ 5- 

Errors concerning the Church and her Rights. 

XIX. The Church is not a true and perfect 
society fully free, nor does she enjoy her own proper 
and permanent rights, given to her by her divine 
Founder, but it is the civil power's business to define 
what are the Church's rights, and the limits within 
which she may bo enabled to exercise them. 

XX. The ecclesiastical power should not exercise 
its authority without permission and assent of the 
civil government. 

XXI. The Church has not the power of dogmat- 



APPENDIX. 



417 



ically defining that the religion of the Catholic Church 
is the only true religion. 

XXII. The obligation by which Catholic teachers 
and writers are absolutely, bound, is confined to those 
things alone which are propounded by the Church's 
infallible judgment, as dogmas of faith to be believed 
by all. 

XXIII. Roman Pontiffs and Ecumenical Coun- 
cils have exceeded the limits of their power, usurped 
the rights of princes, and erred even in defining 
matters of faith and morals. 

XXIV. The Church has no power of employing 
force, nor has she any temporal power direct or 
indirect. 

XXV. Besides the inherent power of the epis- 
copate, another temporal power has been granted 
expressly or tacitly by the civil government, which 
may therefore be abrogated by the civil government 
at its pleasure. 

XXVI. The Church has no native and legitimate 
right of acquiring and possessing. 

XXVII. The Church's sacred ministers and the 
Roman Pontiff should be entirely excluded from all 
charge and dominion of temporal things. 

XXVIII. Bishops ought not, without the per- 
mission of the Government, to publish even letters 
apostolic. 

XXIX. Graces granted by the Roman Pontiff 
should be accounted as void, unless they have been 
sought through the Government. 

XXX. The immunity of the Church and of ec- 
clesiastical persons had its origin from the civil law. 



4i8 



APPENDIX. 



XXXI. The ecclesiastical forum for the temporal 
causes of clerics, whether civil causes or criminal, 
should be altogether abolished, even without con- 
sulting, and against the protest of the Apostolic See. 

XXXII. Without any violation of natural right 
and equity, that personal immunity may be abrogated, 
whereby clerics are exempted from the burden of 
undertaking and performing military services ; and 
such abrogation is required by civil progress, espe- 
cially in a society constituted on the model of a free 
rule. 

XXXIII. It does not appertain exclusively to 
ecclesiastical jurisdiction by its own proper and native 
right to direct the teaching of theology. 

XXXIV. The doctrine of those who compare 
the Roman Pontiff to a prince, free and acting in the 
Universal Church, is the doctrine which prevailed in 
the middle age. 

XXXV. Nothing forbids that by the judgment 
of some general council, or by the act of all peoples, 
the supreme Pontificate should be transferred from 
the Roman Bishop and city to another Bishop and 
another State. 

XXXVI. The definition of a national council 
admits no further dispute, and the civil administra- 
tion may fix the matter on this footing. 

XXXVII. National Churches separated and to- 
tally disjoined from the Roman Pontiff's authority 
may be instituted. 

XXXVIII. The too arbitrary conduct of Roman 
Pontiffs contributed to the Church's division into 
East and West. 



APPENDIX. 



419 



§ 6. 

Errors concerning Civil Society, considered 
both in itself, and in its relations to the 
Church. 

XXXIX. The State, as being the origin and 
fountain of all rights, possesses a certain right of its 
own, circumscribed by no limits. 

XL. The doctrine of the Catholic Church is 
opposed to the good and benefit of human society. 

XLI. The civil power, even when exercised by a 
non-Catholic ruler, has an indirect negative power 
over things sacred ; it has consequently not only the 
right which they call exequatur, but that right also 
which they call appel comme d'abus. 

XLII. In the case of a conflict between laws of 
the two powers, civil law prevails. 

XLIII. The lay power has the authority of re- 
scinding, of declaring null, and of voiding solemn 
conventions (commonly called Concordats) concern- 
ing the exercise of rights appertaining to ecclesias- 
tical immunity, which have been entered into with 
the Apostolic See, without this See's consent, and 
even against its protest. 

XLIV. The civil authority may mix itself up in 
matters which appertain to religion, morals, and spir- 
itual rule. Hence, it can exercise judgment con- 
cerning those instructions which the Church's pastors 
issue according to their office for the guidance of con- 
science : nay, it may even decree concerning the 
administration of the holy sacraments, and concerning 
the dispositions necessary for their reception. 



420 



APPENDIX. 



XLV. The whole governance of public schools, 
wherein the youth of any Christian State is educated, 
episcopal seminaries only being in some degree ex- 
cepted, may and should be given to the civil power; 
and in such sense be given, that no right be recog- 
nized in any other authority of mixing itself up in 
the management of the schools, the direction of 
studies, the conferring of degrees, the choice or appro- 
bation of teachers. 

XLVI. Nay, in the very ecclesiastical seminaries, 
the method of study to be adopted is subject to the 
civil authority. 

XLVIL The best constitution of civil society 
requires that popular schools which are open to chil- 
dren of every class, and that public institutions gen- 
erally which are devoted to teaching literature and 
science and providing for the education of youth, be 
exempted from all authority of the Church, from all 
her moderating influence and interference, and sub- 
jected to the absolute w T ill of the civil and political 
authority (so as to be conducted) in accordance with 
the tenets of civil rulers, and the standard of the 
common opinions of the age. 

XLVUI. That method of instructing youth can 
be approved by Catholic men, which is disjoined from 
the Catholic faith and the Church's power, and which 
regards exclusively, or at least principally, knowledge 
of the natural order alone, and the ends of social 
life on earth. 

XLIX. The civil authority may prevent the 
bishops and faithful from free and mutual communi- 
cation with the Roman Pontiff. 



APPENDIX. 



421 



L. The lay authority has of itself the right of 
presenting bishops, and may require of them that 
they enter on the management of their dioceses before 
they receive from the Holy See canonical institution 
and apostolic letters. 

LI. Nay, the lay government has the right of 
deposing bishops from exercise of their pastoral 
ministry ; nor is it bound to obey the Roman Pontiff 
in those things which regard the establishment of 
bishoprics and the appointment of bishops. 

LI I. The Government may, in its own right, 
change the age prescribed by the Church for the 
religious professions of men and women, and may 
require religious orders to admit no one to solemn 
vows without its permission. 

LIII. Those laws should be abrogated which 
relate to protecting the condition of religious orders 
and their rights and duties ; nay, the civil govern- 
ment may give assistance to all those who may wish 
to quit the religious life which they have undertaken, 
and to break their solemn vows ; and in like manner 
it may altogether abolish the said religious orders, 
and also collegiate churches and simple benefices, 
even those under the right of a patron, and subject 
and assign their goods and revenues to the adminis- 
tration and free disposal of the civil power. 

LIV. Kings and princes are not only exempted 
from the Church's jurisdiction, but also are supe- 
rior to the Church in deciding questions of jurisdic- 
tion. 

LV. The Church should be separated from the 
State, and the State from the Church. 



422 



APPENDIX. 



§ 7- 

Errors concerning Natural and Christian 
Ethics. 

LVI. The laws of morality need no divine 
sanction, and there is no necessity that human laws 
be conformed to the law of nature, or receive from 
God their obligatory force. 

LVII. The science of philosophy and morals, 
and also the laws of a State, may and should with- 
draw themselves from the jurisdiction of Divine and 
ecclesiastical authority. 

LVIII. No other strength is to be recognized, 
except material force ; and all moral discipline and 
virtue should be accounted to consist in accumulating 
and increasing wealth by every method, and in satiat- 
ing the desire of pleasure. 

LIX. Right consists in the mere material fact; 
and all the duties of man are an empty name, and 
all human facts have the force of right. 

LX. Authority is nothing else but numerical 
power and material force. 

LXI. The successful injustice of a fact brings 
with it no detriment to the sanctity of right. 

LXIL The principle of non-intervention (as it is 
called) should be proclaimed and observed. 

LXIII. It is lawful to refuse obedience to legiti- 
mate princes, and even rebel against them. 

LXIV. A violation of any most sacred oath, or 
any wicked and flagitious action whatever, repugnant 



APPENDIX. 



423 



to the eternal law, is not only not to be reprobated, 
but is even altogether lawful, and to be extolled 
with the highest praise when it is done for love of 
country. 

§ 8. 

Errors concerning Christian Matrimony. 

LXV. It can in no way be tolerated that Christ 
raised matrimony to the dignity of a sacrament. 

LXVI. The sacrament of marriage is only an 
accessory to the contract, and separable from it ; and 
the sacrament itself consists in the nuptial benedic- 
tion alone. 

LXVII. The bond of matrimony is not indis- 
soluble by the law of nature ; and in various cases 
divorce, properly so called, may be sanctioned by the 
civil authority. 

LXVIII. The Church has no power of enacting 
diriment impediments to marriage; but that power 
is vested in the civil authority, by which the existing 
impediments may be removed. 

LXIX. In later ages the Church began to enact 
diriment impediments, not in her own right, but 
through that right which she had borrowed from the 
civil power. 

LXX. The Canons of Trent, which inflict the 
censure of anathema on those who dare to deny the 
Church's power of enacting diriment impediments, 
are either not dogmatical, or are to be understood of 
this borrowed power. 

LXXI. The form ordained by the Council of 



424 



APPENDIX. 



Trent does not bind on pain of nullity, wherever the 
civil law may prescribe another form, and may will 
that, by this new form, matrimony shall be made 
valid. 

LXXII. Boniface VIII. was the first who as- 
serted that the vow of chastity made at ordination 
annuls marriage. 

LXXIII. By virtue of a purely civil contract 
there may exist among Christians marriage, truly so 
called ; and it is false that either the contract of 
marriage among Christians is always a sacrament, 
or that there is no contract if the sacrament be ex- 
cluded. 

LXXIV. Matrimonial causes and espousals be- 
long by their own nature to the civil forum. 

N.B. To this head may be referred two other 
errors : on abolishing clerical celibacy, and on pre- 
ferring the state of marriage to that of virginity. 
They are condemned, the former in the Encyclical 
" Qui pluribus," November 9, 1846 ; the latter in the 
Apostolic Letters " Multiplices inter," June 10, 1851. 

§ 9- 

Errors concerning the Roman Pontiff's Civil 
Princedom. 

LXXV. Children of the Christian and Catholic 
Church dispute with each other on the compatibility 
of the temporal rule with the spiritual. 

LXXVI. The abrogation of that civil power, 
which the Apostolic See possesses, would conduce 



APPENDIX. 



425 



in the highest degree to the Church's liberty and 
felicity. 

N.B. Besides these errors explictly branded, 
many others are implicitly reprobated in the exposi- 
tion and assertion of that doctrine which all Catho- 
lics ought most firmly to hold concerning the Roman 
Pontiff's civil princedom. This doctrine is clearly 
delivered in the Allocution " Quibus quantisque," 
April 20, 1849; in the Allocution " Si semper antea," 
May 20, 1850 ; in the Apostolic Letters " Cum Catho- 
lica Ecclesia," March 26, i860 ; in the Allocution 
"Novos," September 28, 1861; in the Allocution 
"Jamdudum," March 18, 1861 ; in the Allocution 
" Maxima quidem," June 9, 1862. 

§ 10. 

Errors which have reference to the Liberalism 
of the day. 

LXXVII. In this our age, it is no longer expe- 
dient that the Catholic religion should be treated as 
the only religion of the State, all other worships 
whatsoever being excluded. 

LXXVIII. Hence it has been laudably provided 
by law in some Catholic countries, that men thither 
immigrating should be permitted the public exercise 
of their own several worships. 

LXXIX. For truly it is false that the civil liberty 
of all worships, and the full power granted to all of 
openly and publicly declaring any opinions or thoughts 
whatever, conduces to more easily corrupting the 



426 



APPENDIX. 



morals and minds of peoples, and propagating the 
plague of indifferentism. 

LXXX. The Roman Pontiff can and ought to 
reconcile and harmonize himself with progress, with 
liberalism, and with modern civilization.* 

* Translation of " The Year of Preparation for the Vatican 
Council." London : Burns, Oates & Co. 1869. 



APPENDIX. 



427 



II. 

Primacy of the Roman Pontiff. 

(Note to Chapter III. § 9.) 

1. Of the Collation of the Primacy, Archbishop 
Manning says : 

" The first chapter (of the First Dogmatic Con- 
stitution of the Vatican Council on the Church of 
Christ) declares the Primacy of Peter over the Apos- 
tles; and that his primacy was conferred on him 
immediately and directly by our Lord, and consists 
not only in honor, but also in jurisdiction." (The 
Vatic. Council, 1871, p. 61.) 

2. On the Nature and Comprehension of the Pri- 
macy, the same author thus speaks : 

" The third chapter (1. c.) defines -4he nature of 
his jurisdiction, namely . . . the plenitude of power. 
... It is, therefore, jurisdiction episcopal, ordinary 
and immediate, over the whole Church ; over both 
pastor and people, that is, over the whole Episcopate, 
collectively and singly, and over every particular 
church and diocese." (L. c. p. 61.) 

3. Distinguishing between the private and official 
capacity of the Pope, Manning says : 

" The Pontiff speaks ' ex cathedra ' when, and 
only when, he speaks as the Pastor and Doctor of all 
Christians. By this, all acts of the Pontiff as a 
private person, or a private doctor, or as a local 
bishop, or as a sovereign of a State, are excluded. 
In all these acts, the Pontiff may be subject to error. 



428 



APPENDIX. 



In one, and one only, capacity, he is exempt from 
error ; that is, when as teacher of the whole Church 
in things of faith and morals." (L. c. p. 64.) 

4. The seat or organ of Infallibility is thus alluded 

to: 

" It is to be carefully noted that this definition 
(of Infallibility) declares that the Roman Pontiff pos- 
sesses by himself the infallibility, with which the 
Church, in unison with him, is endowed." (Manning, 
Vat. C. p. 96.) 

5. In regard to the meaning of the terms "per- 
sonal," "independent," " absolute," and " separate," 
as applied to papal infallibility, Archbishop Man- 
ning very well distinguishes thus : 

" From what has been said, the precise meaning 
of the terms before us may be easily fixed. 

" 1. The privilege of infallibility is personal, inas- 
much as it attaches to the Roman Pontiff, the suc- 
cessor of Peter, as a e public person,' distinct from, 
but inseparably united to the Church ; but it is not 
personal, in that it is attached, not to the private 
person, but to the primacy, which he alone pos- 
sesses. 

" 2. It is also 'independent,' inasmuch as it does 
not depend upon either the Fcclesia docens, or the 
Ecclesia discens ; but it is not independent, in that 
it depends in all things upon the Divine Head of the 
Church, upon the institution of the primacy by Him, 
and upon the assistance of the Holy Ghost. 

"3. It is 'absolute,' inasmuch as it can be cir- 
cumscribed by no human or ecclesiastical law ; it is 
not absolute, in that it is circumscribed by the office 



APPENDIX. 



429 



of guarding, expounding, and defending the deposit 
of revelation, 

"4. It is 'separate ' in no sense, nor can be, nor 
can so be called, without manifold heresy, unless the 
word be taken to mean ' distinct.' 

" In this sense, the Roman Pontiff is distinct from 
the Episcopate, and is a distinct subject of infallibil- 
ity ; and in the exercise of his supreme doctrinal 
authority, or magisterium, he does not depend fot 
the infallibility of his definitions upon the consent 
or consultation of the Episcopate, but only on the 
Divine assistance of the Holy Ghost." (The Vatican 
Council, by Manning, p. 119.) 



43° 



APPENDIX, 



III. 

Of Secular Priests entering Religious Commu- 
nities : Is the Permission of their Ordinary 
requisite ? 

(Note to Chapter VI. g 20.) 

This question is fully developed by Pope Bene- 
dict XIV., Bullar. torn. 2, p. 156, edit. Prati, 1846. 
The following is a summary of the points contained 
in the Rescript of Pope Benedict XIV., having refer- 
ence to the question in hand. 

1. Leander Chizzola, archdeacon of the cathe- 
dral at Brescia, on a sudden left the diocese, and 
without even informing his bishop of the step, became 
a Jesuit in the city of Bologne. 

His ordinary complained of this conduct to Bene- 
dict XIV., and argued against it, on the plea that he 
had not been consulted about the matter, that the 
Church would greatly suffer by it, etc., etc. He de- 
manded, therefore, that Leander be compelled to 
return to his benefice, and that a general law be 
enacted, applicable to all cases of a similar kind. 

2. Two questions, says Benedict XIV., are here 
involved : the particular case of Leander ; the gen- 
eral law to be made for the entire Church to regulate 
all such cases. 

3. As regards the first, Benedict XIV. points to the 
case of Pancratius, deacon of the church at Vienna, 
who embraced the monastic state, contrary to the wish 
of Desiderius, who was then Bishop of Vienna. 



APPENDIX. 



431 



Pope St. Gregory, the Great, being appealed to 
by Pancratius, decided that he could remain in the 
monastery ; that his bishop, in fact, ought to en- 
courage him to persevere in this noble resolve, al- 
though he had left without even informing his bishop 
about it. 

4. With reference to the second question, that a 
general law ought to be issued, this would not appear 
to be necessary, the canons containing ample pro- 
visions on this head. 

In fact, we read in canon 50 of the Fourth Coun- 
cil of Toledo, held in 633 by St. Isidor : 

" Clerics who desire to become monks should, 
by reason of the more perfect life they wish to em- 
brace, be allowed by bishops freely to enter monas- 
teries. 

" Nor should they who are anxious to lead a life 
of contemplation be hindered from so doing." 
Another canon reads thus : 

" A cleric cannot leave his church without the 
consent of the bishop : this holds good, unless he 
wishes to embrace a more perfect state of life : in 
that case he is free to go into a monastery, even 
against the will of the bishop. Tunc enim liberum 
est illi, etiam episcopo contradicente, monasterium 
ingredi." (Deer. Gratiani, Can. Cleric. 19. quaest. 1.) 

5. St. Thomas, 2. 2. quaest. 189, art. 7, holds the 
same views. He alleges as one of his reasons, that 
priests oblige themselves only so long to have charge 
of souls as they retain their parish or benefice ; but 
they by no means bind themselves always to keep 
possession of the parish or benefice. 



432 



APPENDIX. 



St. Antoninus and other eminent theologians also 
maintain this opinion. 

6. But the objection might be made that the 
canons which allow secular priests to enter into re- 
ligious communities even against the will of the 
bishop, refer to strictly monastic institutions only. 
This difficulty cannot hold. For, as Benedict XIV. 
says, the liberty of entering into monasteries ought 
equally to apply to religious institutes of every kind. 

7. Sometimes, however, it may not be a little 
damaging to the interests of a diocese that secular 
priests should become religious. In this case, the 
bishop and the superior can consult with each other, 
or also the Holy See may settle the matter. 

8. Before embracing the religious state, a priest, 
as a general rule, should ask permission of his bishop; 
if the latter refuses his consent, he may, nevertheless, 
reduce his resolve to practice. 

The above outline of the Rescript of Benedict 
XIV., Bullar. xxv. Jan. 14, 1747, shows the admi- 
rable clearness of judgment of the great Pope. It is 
needless to say, that the rescript covers the entire 
ground of controversy, and places the question in a 
clear light. No words of our own could add any 
force to the luminous arguments given above. 



APPENDIX. 



433 



IV. 

Promulgation of the Tridentine Decree on 
Clandestine Marriages, in Ireland. 

(Note to Chapter XXI. § 67.) 

1 . Of the publication of the Decree of the Coun- 
cil of Trent on Clandestine Marriages, in Ireland, 
Perrone says : 

" The Decree of Trent on Clandestine Marriages 
is promulgated in most of the dioceses of Ireland : 
in some places, however, especially the northern dis- 
tricts, which were already occupied by heretics, it 
could not be published. " (Perrone, De Matr. Christ, 
vol. ii. p. 248. edit. Leodii, 1861.) 

2. In note 98 to page 244, vol. ii., Perrone says : 
"For, in 1784, as we shall see, the Benedictine 

Declaration was extended to it (Ireland) : hence the 
Decree of Trent had, of necessity, been published long 
before that time. 

" Hence, on the 7th of March, 1785, this rescript 
was sent to the archbishops of Ireland : 

" 1 It is known to your lordships that several 
bishops of Ireland have repeatedly asked this Sacred 
Congregation de Prop. Fide, that the judgment of 
the Holy See might be announced to them, in regard 
to the validity of marriages that are contracted be- 
tween parties of whom the one is Catholic, the other 
Protestant, and which are celebrated without the obser- 
vance of the form prescribed by the Council of Trent ; 
whether or not such alliances are valid in Ireland.' 



434 



APPENDIX. 



" In order to solve this question, the necessary 
information was obtained, and finally the matter was 
fully examined by the Sacred Cong, of the Holy 
Office, March 3d of the current year (1785), in the 
presence of the Sovereign Pontiff, Pius VI. Where- 
upon his Holiness, having heard the opinions of the 
cardinals and general inquisitors, decreed that in 
Ireland, mixed marriages which had already been 
contracted, or would in future be contracted, even 
without adhering to the form of the Council of Trent, 
in places where this Council or its Decree of Sess. 24, 
c. i. De Ref., was 'perhaps' promulgated, should be 
considered valid though'illicit, in case no other canon- 
ical impediment stood in the way." (Perrone, 1. c.) 

3. "Yet," continues Perrone, "in the ordo divini 
officii issued in 1857 for the use of the venerable 
Irish clergy, by order of the Most Rev. Cullen, Arch- 
bishop of Dublin, for the year 1857, we read on page 
v. the following : 

" 4 This Decree (Trid. Deer, on Clandest. Marr.) 
has been in force in all the dioceses of Ireland, save 
the Archdiocese of Dublin, and the dioceses of Kil- 
dare, Ferns, Ossory, Meath, and Galway ; but in 
these dioceses it was also published on the 2d of 
Dec, 1827, and therefore obtained the force of law 
thirty days afterward, namely, on Jan. 1st of the fol- 
lowing year, 1828, and, consequently, is now obliga- 
tory all over Ireland.' " (Note 98 to p. 244, Perrone, 
De Matr. Christ, vol. ii.) 

4. Perrone, however, does not think that the Tri- 
dentine Decree is published in all the dioceses of 
Ireland. For he says : 



APPENDIX. 



435 



" But the Tridentine Decree was not promulgated 
in England, Scotland, and ' some provinces of Ire- 
land."' (Perrone, 1. c. p. 245.) 

This he confirms in a foot-note to p. 245, 1. a, by 
a decree of the Propaganda of July 18, 1787, which 
decides that the publication of the decree cannot be 
assumed in Ireland, and that, therefore, marriages 
contracted before Protestant ministers are valid. 

From all this, we infer as follows : 

1. Perrone, in the edition of his celebrated work, 
De Matrimonio Christiano, dated 186 1, holds that 
in some parts of Ireland the Tridentine Decree on 
Clandestine Marriages is not yet promulgated. 

2. Kenrick, on the contrary, Theol. Mor. vol. ii. 
p. 328, maintains that the Trid. Decree was pub- 
lished, not only in some dioceses, but throughout all 
Ireland, as early as Dec. 2, 1827. 

3. This view of Kenrick is put forth, also, by 
Cardinal Cullen, in the ordo divini officii for the 
year 1857. 

4. In view, therefore, of this disagreement of 
these excellent authorities, it would appear that with 
regard to the dioceses of Kildare, Ferns, Ossory, 
Meath, and Galway, as also the Archdiocese of Dub- 
lin, the question still remains doubtful ; and there- 
fore, in these places, mixed marriages, as well as 
purely Catholic ones, celebrated in the presence of 
Protestant ministers or secular magistrates, are valid, 
though illicit and sinful. 



436 



APPENDIX. 



V. 

Can individual Theologians and Canonists com- 
ment on the Acts and Decrees of Councils, 
whether Ecumenical, National, or Provin- 
cial ? 

1. In reply to this question, we say, there are 
three kinds of comments or interpretations : 

(a) " Interpretatio authentica," that is, an ex- 
planation of ecclesiastical laws, enacted by Ecumeni- 
cal, National, and Provincial Councils, which is made 
by the lawgiver himself, or by one authorized by him. 
This interpretation emanates from the Pope, the 
Sacred Congregations, and from the bishops of the 
Church. 

(b) " Interpretatio usualis," namely, that which is 
established by long usage or custom. 

(c) Finally, " interpretatio doctrinalis," that which 
is given by learned men. 

2. The " interpretatio authentica " is authoritative, 
and carries with it the force of law itself. The " in- 
terpretatio usualis " possesses the same authority. 

The " interpretatio doctrinalis," that which is 
given by canonists and theologians, has no other 
weight or influence than that which it derives from 
the greater or lesser solidity of the reasons alleged 
by its several authors. 

3. These points are admitted by all jurists and 
theologians, and apply to civil* no less than to eccle- 
siastical legislation. (See Kenrick, Theol. Mor. vol. 
i. tract, iv. De Leg. Eccl. cap. in. p. 112. De In- 



APPENDIX. 



437 



terpr. Leg. ; Koning's Moral Theol. vol. i. p. 58, tract. 
De Leg. cap. iv. De Interpr. Leg.) 

4. The interpretation of private jurists and the- 
ologians, and their comments on the laws of the 
Church, though not possessed of the authority of law, 
has, nevertheless, been always deservedly held in 
high esteem. (Kenrick, 1. c.) 

This sort of interpretation, therefore, far from 
being prohibited, has constantly and uniformly been 
encouraged by the Church. 

5. Hence, it is lawful for any theologian or jurist 
to explain and comment on the Acts and Decrees of 
the Second Plenary Council of Baltimore, approved 
as they are by the Holy See. In fact, it is not only 
lawful, but very laudable to elucidate the decrees of 
the Second Plenary Council of Baltimore, or of any 
other council, whether ecumenical or merely national. 

6. This sort of interpretation, however, is not 
binding on the faithful, and does not acquire the 
force of law. 

7. It is forbidden that any private theologian or 
canonist should "impugn" the authority of the de- 
crees of a National Council when approved of by the 
Holy See. 

8. A National or Provincial Council may be rati- 
fied by the Holy See in two ways : 

(a) In forma communi, when the decrees are not 
examined separately, nor approved motu proprio and 
ex certa scientia. 

(b) In forma specifica, which takes place when 
all the acts and decrees are accurately reviewed, and 
confirmed motu proprio and ex certa scientia. 



438 



APPENDIX. 



9. The confirmation or approbation in forma com- 
muni adds no authority whatever to the decrees of 
National Councils. The approbation in forma speci- 
fica causes them to acquire the force of universal 
laws of the Church. 

10. While, therefore, it is not lawful for any jurist 
to attack the decrees of a National Council approved 
in forma specifica, it may be lawful to question them 
when the approbation is given only in forma corn- 
muni. 

11. The decrees of National Councils, when ap- 
proved of by the Holy See in forma communi only, 
can, according to many theologians, be relaxed by 
the several bishops or archbishops of the countries 
for which they were enacted. (See Kenrick, Theol. 
Mor. vol. i. p. 118, tract, iv. De Leg. Eccl. cap. vi. ; 
Koning's Theol. Moral, tract. De Leg. cap. vii. art. 
i. De Dispens.) 

12. When, however, these decrees are ratified in 
forma specifica they become pontifical or universal 
laws, and can no longer be dispensed with by indi- 
vidual bishops and archbishops. (Bened. XIV. De 
Synod. Dioc. lib. xiii. cap. v. n. 10.) 

13. It seems to be the generally received opinion 
that the Second Plenary Council of Baltimore was 
approved by the Holy See in forma specifica. There- 
fore no individnal bishop or archbishop of America 
can dispense with its decrees. 



APPENDIX. 



439 



VI. 

Instructio edita jussu Sacrae Congregationis de 
Propaganda Fide de Conjugiis.* Romae, 182 i. 

Venerabilibus Fratribus 

Episcopis Vicariis Apostolicis 
hi Imperio Senarum, eique 

adjacentibus Regnis, atque Provinciis. 

Venerabiles Fratres. 

Quaestio de inordinatis, ac clandestinis, apud 
Sinas conjugiis non modo Vestra, Venerabiles Fra- 
tres, ingenia vexavit diu, Sacrorumque Operariorum, 
qui in difficili isto Dominico excolendo agro adlabo- 
rant ; verum etiam S. hujus Congregationis studia 
non mediocriter exercuit. Atque id non earn unice 
ob causam, qua S. Augustinus Ecclesiae lumen ob- 
scurissimam de Conjugiis quaestionem, ejusdemque 
sinus fere inexplicabiles esse professus est ; sed quod 
maxime dolendum, ob hominum corruptelas honora- 
bilis Nuptiarum foederis speciem, ac pulchritudinem 
inobscurantes. Magno itaque Sacramento suus ut 
restituatur et constet honor, S. C. quaestionem hujus- 
modi bono in lumine collocare, ac deflnire tandem, 
sollicita, praesentem Instructionem parandam duxit 
Vobis, Ven. Fr. inscriptam, uti earn cum Missionariis, 

* Nuper vero Illmo ac Revmo Petro Josepho Baltes, Epis- 
copo Altoniensi, ad eandem Congregationem pro informatione 
de conjugiis quibusdam clandestinis recurrenti transmissa, ipsi- 
usque Revmi Episcopi auctoritate ad usuin Cleri suae dioecesis 
denuo typis impressa. 



440 



APPENDIX. 



Parochis, ac Confessariis communicetis. Sed ordine 
res explicanda est ab initio. 

T. Vestris equidem Uteris, ut bene meministis, plu- 
ries ad hanc S. C. datis, significastis : pravum inole- 
visse raorem apud plurimos Christianos, tanto nomine 
indignos, ut post inita sponsalia, habitamque car- 
nalem copulam cum muliere, cum alia inde Matrimo- 
nium contrahant, communibus servatis Imperii, atque 
usitatis ibi Ecclesiae ritibus. Qua de re anxie, ac 
pro charitate, qua erga oviculas flagratis Vestrae sol- 
licitudini commissas, a Matre ac Magistra vestra pos- 
tulastis invalescenti apud eas gentes morbo medelam 
consentaneam : et percontati estis, utrum primum 
illud conjunctionis genus, an alterum justi Matri- 
monii vim haberetj quando intra fines Imperii Sinici, 
ac circumjacentium Regnorum ac Provinciarum non- 
dum esset Tridentinum de Matrimonio Decretum 
promulgatum. 

II. Et S. quidem Congregatio Vos atque Opera- 
rios Vestros enixe hortata est, omnimodis ut nitere- 
mini qua privatis, qua publicis concionibus, ac prae- 
sertim in Sacramenti poenitentiae administratione 
deterrere Fideles a clandestinis matrimoniis, quae 
Sancta Dei Ecclesia justissimis de causis semper de- 
testata est, atque prohibuit ; et ex quibus gravia pec- 
cata ortum habent : maxime vero admonendos gravi- 
ter, et sub interminatione Divini judicii eos, qui in 
statu damnationis permanent, dum priore uxore, cum 
qua contraxerant, relicta, cum alia palam contrahunt, 
et cum ea in perpetuo vivunt adulterio, Neque his 
contenta monitis ex limpidis S. Tridentinae Synodi 
fontibus deductis, ad propositi Dubii solutionem, ex 



APPENDIX. 



441 



puris item fontibus Pontificii juris in omnes Catho- 
licos pervulgatis observandam indixit a Gregorio IX. 
P. M. acceptam praescriptionem Capitis Is qui 30. 
de Spousal, et Matrim. Interrogatus enim Pontifex, 
quid facto opus esset de homine, qui post inita cum 
muliere sponsalia, habitumque concubitum, aliam 
deinde in facie Ecclesiae duxerat, et cognoverat, 
hujusmodi responsum dedit. " Is qui fidem dedit 
alicui mulieri, quod earn in uxorem ducere velit, et si 
postea illam carnaliter cognoscat, aliamque in facie 
Ecclesiae ducat, ad primam redire tenetur : quia licet 
primum matrimonium praesumptum videatur, tamen 
contra talem praesumptionem probatio in contrarium 
non est admittenda. Unde sequitur quod Matrimo- 
nium postea de facto contractum non verum sit Ma- 
trimonium sed nullum." Hanc autem Praescriptio- 
nem S. C. Vestris studiis commendandam suscepit ab 
anno 1786. eamdemque anno 1804. V. F. Stephanus 
Borgia clarae memoriae Cardinalis Sacrae item Con- 
gregationis nomine ad Vestrum unum, nempe ad 
Vicarium Apostolicum Cochinchinae scribens, expli- 
cates retinendam esse declaravit. 

III. Jam vero tali tantoque remedio, consilioque 
a S. C. exhibito, futurum ea sperabat, ut justis illorum 
Christianorum conjugiis rite constabiliendis, clandes- 
tinisque cohibendis, opitulante Deo, nihil aut fere 
nihil superesset, quando post annos non paucos lite- 
ras ejusdem Vicarii Apostolici Cochinchinae accepit, 
quibus praeter cetera significavit : Capitis Is qui 
observantiam eas in regiones vix aut ne vix quidem 
induci posse ob invincibilem Sinarum illius legis 
ignorantiam : ex Divini verbi praeconibus, qui erudi- 



442 



APPENDIX. 



endae genti strenuam dant operam, extitisse fere 
neminem, qui docuerit, ex copula clandestina Spon- 
salia subsequente validum in Foro externo Matrimo- 
nium aestimandum : docere autem id deinceps aspe- 
rum futurum ob gravissima inde incommoda perti- 
mescenda, ac praesertim ob scandala turn apud Chris- 
tianos, turn apud Gentiles oritura quorum firm a per- 
suasio est : Matrimonium justum constare nullum, 
nisi quod in conspectu Ecclesiae, vel civilis Imperii 
legis fuerit celebratum. 

IV. Acceptis hujusmodi Uteris, S. C. non antea 
denniendum quidquam deliberavit, quam Uteris ad 
Vos omnes, Ven. Fr. missis, quibus, ut nostis, scisci- 
tatum est de origine opinionum apud eas gentes circa 
nuptias justas, et illegitimas : de universa super Ma- 
trimonils doctrina a Missionariis explicata: de ritu 
Ecclesiastico, ac civili nuptiarum : deque incommodis 
ac periculis extimescendis, si quando memorati Capi- 
tis Is qui apud Sinas observantia esset inducenda. 

V. Et Vos quidem certiorem S. C. fecistis respon- 
sionibus fere inter se consentaneis : quae plene Emi- 
nentissimis Patribus satisfacere fortasse potuissent, 
nisi in re tanti momenti definienda, diligentia supra 
quam dici possit, maturitateque summa sibi opus esse 
existimassent. Aliae itaque literae S. C. nomine per- 
venerunt ad Vos, a Vobisque novae responsiones red- 
ditae, ex quibus Dubia, quae sequuntur, efformata 
sunt. 

Dub. I. (quod in serie propositorum septimum 
est) — An in Chinae, Cochinchinae, et Tunchini utrius- 
que regionibus ■, in quibus Tridentinum de Matrwionio 
Decretum nondum promu/gatum est. Copula sponsalia 



APPENDIX. 



443 



subsequens verum Matrimonium induci, etiamsi Sponsi 
inter coeundum non maritali affectu, sed libidine moti, 
existiment, se in illicit um ac fornicarium actum irruisse y 
Matrimonii) jus to constituendo imparem, ad propterea 
non sibi ereptam facultatem existiment ad alia vota 
transeundi, cum haec apud eas gentes persuasio vigeat ? 

Dub. II. (quod in serie octavum est) — Quale con- 
silium dandum Missionariis earum regionum circa mo- 
dum servandum, praesertim i?i poenitentiae Sacramenti 
administratione, cum Us Fidelibus, qui post Sponsalia et 
copulam habitam cum una muliere, ?iuptias puhlice cum 
alia contraxerunt, quas ipsi bona fide justas cxistimant, 
validasque ? 

Dub. III. (quod in serie nonum est)- — Vicariis 
Apostolicis, ac Missionariis remedium flagitantibus ap- 
tum ac cohibenda conjugia clandestina, et avertenda 
damna ex iisdem funestissima suboritura, quid consilii 
dandum, aut praescribendum sit ? 

Ad haec clarius, atque accuratius enodanda Dubia 
juverit animadvertere : Eminentissimis Patribus in- 
credibile videri, persuasionem in I. Dubio memora- 
tam tantam vigere apud Sinenses, ut communis exis- 
timari possit : nempe ex Sponsalibus, et copula clan- 
destine habita non iis ereptam esse facultatem ad alia 
voti transeundi. Etenim cum S. C. legem eo capite 
comprehensam explicandam iis gentibus, quoties sese 
occasio obtulisset, praescripserit ; cumque compertum 
sit, quanto Vos studio ac sollicitudine S. C. consiliis, 
mandatisque morem gerere consueveritis ; ac prae- 
terea post accepta consilia, ac mandata hujusmodi, 
per nonnullos annos nihil a Vobis de persuasione ilia 
renunciatum sit; jure Eminentissimi Patres arbitran- 



444 



APPENDIX. 



tur, Missionaries ac Catechistas doctrinam Capitis 
Is qui non semper quidem. sed pro re nata tradidisse 
fidelibus nonnullis, hosque aliis, atque aliis tradere 
deinceps potuisse. Ac certe Vestrum unus narravit 
— Missionarium quemdam ceteris clarius coram mul- 
tis hominibus primariis palam docuisse Sponsalia 
post copulam carnalem inter Sponsos habitam, ex 
legibus Ecclesiae judicari debere tamquam Matrimo- 
nia, nisi contrarium certo demonstretur — . Quo 
quidem facto facile intelligitur, alios Missionaries 
idem minus clare tradidisse, et primarios illos viros 
regulam Ecclesiae gravissimam facile cum aliis fideli- 
bus communicasse. Erunt igitur non multi, sed 
erunt tamen, apud quos persuasio ilia non vigeat ; 
erunt plurimi, apud quos ea vigebit. Stabit ergo per- 
suasio ilia pede uno, cadet altero. 

Videte igitur Ven. Fr., utrique Fidelium generi 
congruis consiliis, ac documentis providendum. Quod 
ut accurate succedat, ob oculos vestros proponite, 
quae in elucidando capite Is qui afFert P. Pirhinghius 
Sacrorum Canonum explicator probatissimus. Nam 
que ille in lib. IV. Decretal. Tit. I. Sect. I % 5. post 
memoratam Gregorii IX. regulam, seu praescriptio- 
nem, haec addit " Ratio est, quia Ecclesia ex carnali 
copula praesumit in sponsis conjugalem consensum 
ad excludendum peccatum, quod scilicet Sponsus et 
Sponsa non fornicario, sed affectu maritali se invicem 
cognoscere voluerint quia delictum non est praesu- 
mendum, et haec est praesumptio Juris et de Jure, id 
est omnino certa et indubitata, contra quam non ad- 
mittitur probatio ; et consequenter non audiretur 
Sponsus asserens, se non cognovisse Sponsam affectu 



APPENDIX. 



445 



maritali, vel animo contrahendi Matrimonium cum 
ilia. Covatr. in Epitome Lib. IV. Decret. p. I. Cap. 
IV. § i. num. i. et 2. Confirm atur, quia copula car- 
nalis sequuta post Sponsalia de futuro est sufrlciens 
signum, consensus de praesente in Matrimonium ; et 
Sponsi per earn censentur sibi invicem tradere : quae 
praesumptio habet locum in Foro contentioso, et judi- 
ciali tantum, non autem in foro conscientiae, et poeni- 
tentiali. Unde si Sponsus vere cognovisset Sponsam 
non affectu maritali, sed fornicario, non esset verum 
matrimonium in foro poenitentiali, et coram Deo, 
quia Papa non potest facere, ut sine consensu ex- 
presso vel tacito sit verum Matrimonium. Hostien. 
hie col. 2. in fine. Fagnan. hie. num. 6. et 7." Hac- 
tenus P. Pirhinghius, qui hanc doctrinam exhibens, 
afrirmat eamdem esse apud omnes Canonum tracta- 
tores pervulgatam. Hie igitur state, hie haerete. 
Nempe in iis etiam regionibus, in quibus Tridentinum 
de Matrimonio decretum promulgatum non est, si 
Sponsus ac Sponsa non maritali affectu, sed forni- 
cario invicem coiverint, non ideo eorum Sponsalia in 
verum Matrimonium transiie corum Deo; ac prop- 
terea coram Deo, sive in Conscientiae foro, iisdem 
ereptam non esse facultatem ad alia transeundi Vota, 
si se legitima occasio praecedentium Sponsalium dis- 
solvendorum obtulerit. 

Ceterum in forum externum ac judiciale deducta 
si Copula sit, possent iidem ab Ecclesiastico judice 
legitimorum instar Conjugum haberi : atque idcirco, 
quoad alter eorum vixerit, a quovis alio matrimonio 
prohiberi, quia est haec praesumptio juris et de jure, 
id est certa omnino et indubitata, contra quam non 



446 



APPENDIX. 



admittitur probatio : et consequenter non audiretur 
Sponsus asserens, se non cognovisse Sponsam affectu 
maritali, vel animo contrahendi matrimonium cum 
ilia. 

Quae cum ita sint, septimo Dubio hac ratione S. 
C. respondendum censet : nempe — Si in praefatis 
Regionibus, ubi publicatum non fuit decretum S. 
Concilii Tridentini, duo Sponsi carnalem inter se 
deinde habeant copulam, earn tamen non ex affectu 
maritali, sed affectu illicito ac fornicario ; haec eorum 
Copula minime transire facit praecedentia eorum- 
dem Sponsalia in verum Matrimonium coram Deo ; 
seu in foro conscientia liberi manent, atque poterunt, 
si praedicta eorum Sponsalia ex aliqaa legitima 
causa dissoluta fuerint, nuptias alias licite inire. Ni- 
hilominus si eorum copula in foro externo, et judi- 
ciali probetur, poterunt iidem ex praesumptione 
Juris et de Jure, contra quam non admittitur pro- 
batio per Ecclesiasticam potestatem adigi ad se se 
habendos tamquam veros Conjuges, quibus, vivente 
Consorte, quodvis connubium interdictum sit, ex Cap. 
30. De Sponsalib. et Matrim. 

Sed gradus faciendus est ad alterum enodandum 
Dubium, quod octavum in serie propositorum est ; 
scilicet — quale consilium dandum Missionariis earum 
Regionum circa modum servandum (praesertim in 
sacramenti poenitentiae administratione) cum iis 
Fidelibus, qui post Sponsalia, et Copulam habitam 
cum muiiere, nuptias publice cum alia contraxerunt, 
quas ipsi bona fide justas existimant, validasque — 
cum hujusmodi poenitente hanc esse diligentiam, 
cautionemque observandam Eminentissimi Patres 



APPENDIX. 



447 



censuerunt. Placide eundem interroget Confessa- 
rius ; utrum cum prima ilia muliere concubuerit 
affectu motus maritali ; an affectu illicito ac forni- 
cario. Si poenitens hoc alterum respondebit, in pace 
dimittet, nec de validitate Matrimonii deinceps con- 
tract! dubitationem ullam movebit. Si vero poeni- 
tens respondebit, se cum prima ilia muliere affectu 
coivisse maritali, graviter admonebit, eum non alte- 
rius esse maritum, sed primae, ad ipsamque redire 
omnino debere juxta saepe memoratam Capitis Is qui 
praescriptionem. Sed aliam quoque cautionem prae 
oculis habeant Missionarii : videlicet si accideret poe- 
nitentem hujusmodi in foro externo minime probare 
posse, carnalem copulam ab se cum prima muliere 
habitam, ac propterea adigeretur Ecclesiastic! Prae- 
sidis judicio ad nuptias in conspectu Ecclesiae con- 
tractas in honore retinendas ; id si accideret, deberet 
ille quamcumque poenam etiam excommunicationis 
tolerare patienter potius quam certus impedimento se 
irretiri ligaminis, cum altera non sine gravi culpa con- 
cumbat. Nota enim est Innocentii III. P. M. prae- 
scriptio Cap. 44 de sent. Excom. expressa — 

" Si alter Conjugum (ita ille) pro certo sciat im- 
pedimentum Conjugii, propter quod sine peccato mor- 
tali non valet carnale commercium exercere quamvis 
illud apud Ecclesiam probare non possit . . . debet 
potius excommunicationis sententiam humiliter susti- 
nere, quam per carnale commercium peccatum mor- 
tale operari." 

Ex hactenus consideratis Responsum ad hujus- 
modi II. Dubium S. C. ita complexa est — Si quis 
Fidelium post Sponsalia et Copulam dein habitam 



448 



APPENDIX. 



cum una Muliere, cum altera muliere publice Matri- 
monium contrahat : atque in hoc statu ad Missiona- 
rium aliquem in Tribunali Poenitentiae accedat, debe- 
bit eum interrogare ; an Copulam istam cum ilia 
prima Muliere habuerit ex. affectu maritali, an vero 
ex afTectu illicito et fornicario. Si alterum hoc res- 
pondent, nullam de validitate praesentis sui Matri- 
monii dubium ei movebit. Sin autem primum respon- 
dent, graviter ipsum commonebit, eum maritum esse 
non secundae seel primae mulieris, ad eamque redire 
omnino debere. Additur vero ad eorumdem Mis- 
sionariorum instructionem ; quod si forte homo iste 
probare non valens in foro externo carnalem copulam 
ab se habitam cum prima ilia Muliere, cogeretur hinc 
per Ecclesiasticam Potestatem cum altera muliere 
remanere qua cum publice Matrimonium contraxit, 
deberet is poenam quamlibet, ipsamque Excommuni- 
cationem humiliter potius sustinere, quam cum altera 
hac muliere carnale commercium exercere non sine 
lethali culpa, ex Cap. 44. de sent. Excom. 

Statuendum nunc, quid consilii dandum Vobis 
Ven. Fr., et Operariis, qui in Sinensi Dominico agro 
adlaborant, quo facilius feliciusque clandestinae cohi- 
beantur conjunctiones, et praecidantur scandala, dam- 
naque funestissima, quae suboriri ex iis possent : 
quod erat III. Dubio propositum. Certe negari non 
potest, maximam ad clandestinas conjunctiones prae- 
cidendas medelam ac praesidium in Celebris Triden- 
tini de Matrimonio decreti promulgatione ab Ecclesia 
collocari : et Apostolica quidem Sedes, quotiescum- 
que conducere ea promulgatio Episcopis, atque Apos- 
tolicis Vicariis visa est, nihil reliqui fecit, quo facilem 



APPENDIX. 



449 



iisdem se praeberet, atque hujusmodi medicinam tali 
consentaneam morbo praescriberet, quod fecit in 
Archiepiscopatu Kioviensi, cujus exemplum Vestrum 
unus in suis Uteris indigitavit, nempe Ven. Fr. Vica- 
rius Apostolicus Cochinchinae. Verum de Kioviensi 
exemplo, quod ad rem nostram maxime facit, legen- 
dum est praeclarum Benedicti XIV. P. M. opus de 
Synodo Dioecesana Lib. XII. Cap. V. §§ 8. 9. 10, et 
II.; ac legenda ita ejusdem Pontificis Constitutio 
Etsi Pastoralis § 8. de Sacram. Matrim. ?iurn. 1. — 
Curent Ordinarii locorum, ut Decretum S. Concilii 
Tridentini de reform. Matrim. in locis et Parochiis 
Graecorum et Albanensium, quoties expedire viderint, 
evulgetur et publicetur — . Sed certum quoque est, 
sicubi promulgatum id Dccreti fuerit, ibique de prae- 
sentia Parochi praescriptum observari minime potu- 
isset, quod vel Parochus deesset omnino vel difficile 
adiri posset, Apostolicam Sedem declarasse iis in 
locis testium praesentiam satis esse ad valide matri- 
monia constabilienda : quo si integrum Decretum 
observari non posset, quoad tamen posset, observa- 
retur. 

Jam vero Eminentissimi Patres in hujusmodi pru- 
dentem Apostolicae Sedis Oeconomiam animum in- 
terdentes : itemque considerate ac meditatio animo 
perpendentes literas a Yobis, Ven. Fr., iterato ad S. 
C. hac super re datas, circumspectantes etiam civiles, 
sacrasque rationes, et faciem ipsam Imperii Sinarum, 
quaeque eidem junguntur provinciarum atque regno- 
rum ; censuerunt, si id SSmo D. N. placuerit, ut 
quibus in locis id expedire maturo consilio judicave- 
ritis, in iis Concilii decretum integrum rite promul- 

29 



450 



APPENDIX, 



gandum curetis, aut saltern quoad fieri licuerit, juxta 

regulas paulo ante traditas. 

Quamobrem Omnia et singula matrimonia, quae 
posthac celebrari contigerit apud Sinas, ut valida 
nominentur et sint, ineunda erunt coram Parocho, 
aut Missionario, aut alio quovis legitime designato, 
ac duobus vel tribus, testibus, iisque quoad licuerit, 
Christianis. In iis vero locis in quibus integrum non 
posset promulgari Decretum, vel si promulgatum sit 
Parochus tamen, vel alius rite designatus absit, vel 
faciles ad eundem aditus non sint, iniri quidem pos- 
sint conjugia. etsi absque Parocho, coram duobus 
saltern testibus, iisque si fieri possit Christianis • ita 
tamen contrahentes, ne Sacramenti dignitas vilescat, 
obligentur lege sistendi se coram Missionario vel 
Parocho quandocumque reduci, ut rite ab eo bene- 
dictionem accipiant. Missionarius autem vel Paro- 
chus redux, quando sibi de Consensu Conjugum con- 
stiterit, antequam Conjuges benedicat, eos condoce- 
faciat, ejusmodi benedictionem ad ritum unice, non 
ad validitatem pertinere Conjugii ; ac propterea non 
committet ille ut rursus consensio per nova verba 
exprimatur. 

Tandem ne Decreti Tridentini memoria, jusque 
obsolescat, cupit S. C. ut quoties se dederit occasio 
Missionarii illud popularibus sibi commissis expli- 
cent, ac juxta regulas modo expositas declarent. Ex- 
pedit enim, ut ipsae maxime adolescentulae virgines 
id perceptum habeant, ne in fraudem induci, et occul- 
tis, vimque nullam habituris nuptiarum promissis, se 
ad ullam pellici turpitudinem patiantur. 

Atque haec via et ratio est, quam retinendo exis- 



APPENDIX. 



451 



timat S. C. inordinatas ac clandestinas conjunctiones 
praefocari, Deo dante posse, ac Magno Sacramento 
suum honorem, unde apud plures deciderat, redinte- 
grari. 

Quam S. Congregationis sententiam SSmo Dno 
nostro PIO divina prov. Papae Septimo relatam per 
me infrascriptum Secretarium ejusdem Sacrae Con- 
gregationis in Audientia habita die 14. Januarii 182 1. 
Sanctitas Sua benigne approbavit, et omnino servari 
jussit* 

Datum Romae ex Aedibus S. Congregationis die 
17. Mensis, et anni quibus supra. 

C. M. Pedicini Secretarius. 

* This Instruction on Clandestine Marriages, and the utility 
of publishing the Decree of the Council of Trent, though given 
for China, is singularly applicable to the United States, as we 
explained in this book, ch. xxi. § 68. 



452 



APPENDIX. 



VII. 

Decree, issued for New Orleans and the United 
States, on Marriages, whether mixed or 
purely Catholic, contracted before Protest- 
ant Ministers and Magistrates. 

Decretum. 

Feria V. 9. Septei?ibris 1824. 
In Co?igregatione Generali S. Romanae et univer- 
salis Inquisitionis habit a in Palatio Vaticano coram 
Ssmo Domino Nostro Leone Divina Procidentia Fapa 
XII. ac Eminentissimis et Illustrissimis Dnnis Cardi- 
nalibus Generalibus Inquisitionibus a Sancta Sede speci- 
aliter deputatis. 

Relatae fuerunt Litterae Episcopi Novae Aureliae 
ad sanctam Congregationem de Propaganda Fide 
datae sub die 4. Aprilis 1822, quibus exponit in Neo- 
Aureliana Provincia ? perinde ac in caeteris Provinciis 
Foederatae Americae, quotidie juxta civiles illarum 
Regionum leges, a Judicibus vel ab Acatliolicis Min- 
istris celebrari Matrimonia, inter quae non raro etiam 
mixta, seu Catholicos et Acatholicos, seque propterea 
gravissimis continuo vexari angustiis ob hujusmodi 
matrimoniorum clandestinitatem, ac legum jussa, ig- 
norans, quid consiiii capiendum sit, cum unus tantum 
ex Contrahentibus in se reversus, ac facti, vel erroris 
poenitens, petit Ecclesiae reconciliari, vel ad Catho- 
licam convertitur fidem, renuente altero se subjicere 
Canonicis praescriptionibus exequendis. — Quapropter 



APPENDIX. 



453 



ut a dubiis et anxietatibus circa matrimonia praefata, 
nec non circa modum se gerendi cum Conjuge resipis- 
cente aut converso, quantum fieri potest, et se liberet 
et Missionaries ; enixe rogat, ut in tota qua longe 
patet Neo-Aurelianensi Dioecesi (nimirum in Supe- 
riori, ac Inferiori Louisiana, ac in Floridis, caeteris- 
que partibus olim Gallorum, vel Hispanorum ditione 
subjectis) Sanctitas sua declarare, atque statuere dig- 
netur relate ad Matrimonia hujusmodi quod pro Hol- 
landia et Foederato Belgio declaravit ac statuit Bene- 
dictus XIV. 

Ssmus itaque Dominus Noster Leo XII. re mature 
perpensa, libratisque illarum Regionum circumstan- 
tiis, et auditis Eminentissimorum et Romanorum Car- 
dinalium Generalium Inquisitorum suffragiis, Epis- 
copi oratoris Votis et precibus annuens praesenti 
Decreto extendit ad totam, ut supra Neo-Aurelianen- 
sem Dioecesim Declarationem, a S. M. Benedicto 
XIV. datam die 4. Novembris 1741 Super dubiis 
respicientibus Matrimonia in Hollandia, et Belgio 
contracta et contrahenda. 

INSTRUCTIO. 

Exposuerat S. Congregationi de Propaganda in 
suis litteris 4. Aprilis 1822 Episcopus Novae-Aureliae 
in Foederata America. 

r. Antiquiores illarum missionum Sacerdotes a se 
consultos, in ea esse opinione, quod Concilium Tri- 
dentinum numquam fuerit illic sclemniter publicatum. 

2. Econtra, ejus in Episcopatu Praedecessorem, 
in suis Instructionibus in quodam manuscripto Codice 
contends, licet non declarat, pro facto supponere, 



454 



APPENDIX. 



tempore Gallicae, vel Hispaniae dominationis pro- 
mulgatum fuisse Concilii Decretum. 

Hinc 3. Se plane nescire, quid agendum cum in 
suae dioeceseos regionibus frequenter contingat, quin 
ob civiles qua ibi obtinet, leges, impediri id possit, a 
Judicibus, vel pseudoministris celebrari matrimonia 
mixta, et aliquoties etiam inter Catholicos, idque non 
solum ubi deest copia sacerdotis, sed etiam ubi adest 
Parochus. Atque idcirco 

4. Si invalida declarentur ob Clandestinitatem 
Matrimonia hujusmodi, gravissima inde in tota Neo- 
Aurelianensi Dioecesi oritura incommoda, turbationes 
et anxietates turn Catholicorum fidelium, turn Epis- 
copi, et Missionariorum, obveniente scilicet casu, 
quod alterutra tantum ex contrahentibus pars ad 
bonam frugem, vel ad fldem revertatur, perseverante 
altera in sua pervicacia, ac civilibus legibus freta, tarn 
Separatione obsistenti, quam novi ad Tridentini for- 
mam Matrimonii celebrationi. 

5. Hisce autem incommodis avertendis, spirituali- 
que tot Conjugum saluti consulendi nullum aliud sibi 
videri suppetere medium, nisi quod auctoritate Ponti- 
ficia in ea dioecesi dispensetur super Tridentino 
Clandestinitatis impedimento. Quapropter enixe 
postulabat, ut pro Matrimoniis, quae in illis regioni- 
bus contrahuntur, Summus Pontifex statueret ac de- 
claret, quod statuerunt ac declararunt Benedictus 
XIV. pro Hollandia et Belgio, Pius autem VI. et 
Pius VII., pro Gallia tempore schismatis. En ejus 
verba : " Certe publicatum fuerat Concilium in Hol- 
landia tempore Hispanicae Dominationis, cum vero 
in manus hereticorum transiit suprema auctoritas, 



APPENDIX. 



455 



Sapientissimus Pontifex Benedictus XIV. illi benigne 
derogandum in hac parte duxit. Idem judicavere S. 
M. Pius VI. et Pius VII. pro matrimoniis in Gallia, 
schismatis tempore contractis. 

"Quidni speraremus eadem lenitate nobiscum 
usuram Ecclesiam, cum eadem rationum momenta in 
gratiam hujus regionis militent." 

Quibus omnibus relatis in Congregatione Gen- 
erali Sanctae Romanae et Universalis Inquisitionis 
habita in Palatio Vaticano. Feria V. die 9. Septem- 
bris 1824 coram Ssmmo Domino Nostro Leone Di- 
vina Providentia Papa XII. Sanctitas sua, auditis 
Eminentissimorum ac Reverendissimorum Cardina- 
lium Generalium Inquisitionis suflragiis extendendam 
censuit, prout ex hoc adjuncto extentionis decreto, 
ad totam Neo-Aurelianensis Dioecesim Declarationem 
Benedicti XIV. pro matrimoniis in. Hollandia et Bel- 
gio. Quoad cetera vero in eisdem Episcopi litteris 
contenta, respondendum jussit sequenti instructione. 

Ac primo, quoad Tridentini Decreti publicatio- 
nem : Jam pro firmo teneri debet, turn ex Sacrarum 
Congregationum responsionibus, turn ex eorumdem 
Romanorum Pontificum clecretis, ibi praesumendam 
earn esse, ubi constet Decretum illud fuisse aliquo 
tempore tamquam Decretum Concilii observatum. 
Porro observatum aliquando fuisse iis in regionibus 
cum Gallorum vel Hispanorum subdebantur imperio 
facile ostendi potest et quidem relate ad Hispanos : 
Adeo exploratum est, quanto religionis studio His- 
paniarum reges, Concilio et Apostolicae Sedi obse- 
quentes, in ejusdem Concilii publicationem in omni 
bus eorum ditionibus faciendam incubuerint, ac 



456 



APPENDIX. 



quanta pariter sedulitate concilianda* Decreta obser- 
vari curarint Hispanarum ditionum antistites, ut nec 
vel minimum dubitari queat de ejusdem decreti in 
Hispanicis Americanicis regionibus observantia. Ne- 
que pariter locus est de hoc dubitandi relate ad Pro- 
vincias quae Gallorum dominio subjiciebantur. 

Constat enim, Galliarum regibus adeo cordi fuisse 
clandestina submovere matrimonia ut Ecclesiasticae 
legi subsidio venientes, observantiam concilium^ de- 
creti non solum regiis edictis indixerint, sed et inter 
leges recensuerint omnino servandas ubicumque 
eorum extendebatur imperium. Atque quo de Colo- 
nias. Quum ageretur anno 1764 sub Clemente XIII. 
de extendenda ad regiones Canadensem, et Quebec- 
censem memorata Benedicti XIV. declaratione, monu- 
mentis in causa allatis demonstratum fuit Tridenti- 
num clandestinitatis impedimentum illis in coloniis 
tunc viguisse non secus ac in Gallia, ex quo inferen- 
dum, et in aliis quoque vigere quae partem nunc con- 
stituunt Neo - Aurelianensis dioecesis. Accedit et 
defuncti Episcopi testimonium, qui, ut refert Orator, 
in suis instructionibus pro facto supponit promul- 
gatum ibi fuisse Tridentinum Decretum. Nec inte- 
rest, quod non expresse id declaraverit. Superva- 
caneum namque duxit declarare, quod pro certo ac 
notorio tenebat. 

Non valent autem neque missionariorum quos 
consuluit Episcopus, assertiones de non peracta so- 
lemne publicatione Concilii, neque execrandus ineun- 

* " Concilianda " would seem to be a typographical mistake 
in the original. Read, " concilii/' 
f Read, M concilii. ,, 



APPENDIX. 



457 



dorum Matrimoniorum coram Judicibus vel Hereticis 
ministris abusus, ut inde inferri possit, non subsistere 
impedimentum clandestinitatis. Ex eo enim, quod 
praefati Missionarii opinentur non fuisse solemniter 
publicatum decretum de quo agitur, non sequitur, eos 
inflciari, ipsum fuisse aliquo tempore observatum ; ex 
observantia autem, ut supra monitum est, praesumi- 
tur publicatio. . Caeterum pluris facienda est laudati 
defuncti Episcopi, quam dictorum Mission ariorum 
auctoritas. Abusus vero contrahendi coram Judici- 
bus vel Pseudoministris, haud quaquam probat, legem 
non existere, vel non obligare, sed probat tantum, 
quod maxime dolendum est, tarn perditos inveniri 
Catholicos, qui sacrilego ausu divinas aeque ac eccle- 
siasticas leges palam conculcare non erubescant. 

Hinc apparet, quid de hujusmodi matrimoniis 
sentiendum sit. Absurda autem et mali exempli foret 
generalis, quam expectare videtur Episcopus, dispen- 
satio super clandestinitatis 'impedimento, extensive 
etiam ad catholicorum matrimonia. Neque ille gra- 
vate ferat, earn ab apostolica Sede denegari. Jam 
enim quoad matrimonia Haereticorum inter se, vel 
cum Catholicis seu mixta, quae praecipua sunt anxie- 
tatum ejus causa, ipse Episcopus, et Missionarii ab 
omnibus extricantur et liberantur angustiis per exten- 
sionem Benedictinae declarationis. Quoad vero ma- 
trimonia Catholicorum, id est, inter utramque partem 
Catholicam, latere non debet Episcopum, denegatam 
fuisse dispensationem etiam Canadensibus, et Que- 
beccensibus, licet ratione turn locorum, turn legum, 
turn religionis Dominantium, in similibus ac Neo- 
Aurelianenses, versarentur circumstantiis. Sequidem 



453 



APPEXDIX. 



Feria V. die 29. Novembris 1764 proposito clubio 

" an praesens iUarum regionum ( Canadensis scilicet ac 
Quebeccensis ) conditio exigere videantur ut S a net a Sedes 
genera liter dispenset ab observantia formae induct ae a 
Co?icilio Tridentino Pesponsum prodiit Negative" 

Neque pro Catholicorum matrimoniis ad rem faci- 
unt laudatorum Pontificum declarationes, ac decreta 
pro Hollandia et Gallia. Ipse namque Benedictus 
XIV. expresse declarat (de Syn. Dioec. lib. 6. cap. 6. 
§ 13) ea non comprehendi in suo pro Foederati Belgii 
Provinciis decreto " Matrimonia, inquit, Catholicorum 
in decreto non comprehensa facile intelliget quicum- 
que advertat, illud nominatum restrictum esse ad ea 
Matrimonia, quae in praefatis regionibus vel inter 
duos contrahentes Haereticos, vel inter unam partem 
Catholicam, et alteram Haereticam contrahuntur." 
Reliqui autem duo Pontifices Pius VI. et Pius VII. 
haud quaquam pro Gallia derogarunt in hac parte 
Tridentino Concilio, sed tantum, et Episcopis con- 
cessere ad tempus facultatem dispensandi super Tri- 
dentini forma in Matrimoniis mixtis, et quoad Catho- 
licos, declararunt casus, in quibus ex Ecclesiae mente 
cessare intelligitur ejusdem servanclae formae obli- 
gatio, nempe tempore persecutionis, absente, vel 
latente legitimo Parocho, vel si difficile admodum 
foret ac periculosum ipsum adire " Quoniam, inquit 
Pius VI. in Instructione ad Episcopum Lucionensem 
data die 28. Maii 1792, complures ex istis Fidelibus nan 
possunt omnes Parochum legitimism habere, istorum pro- 
fecto conjugio coram testibus et sine Parochi praesentia, 
si nihil aliud obstet, et z'alida, et licita erunt, ut saepius 
dedaratum fuit a Sancta Congregations Concilii Triden- 



APPENDIX. 



459 



tini interprete : Quas ecclesiastici Juris dispositiones 
nec ipse ignorat Episcopus. Scribit enim Si id eveni- 
ret quod scilicet contrahant Catholici vel inter se, vel 
cum Acatholicis coram Judicious, aut Haereticis Min- 
istris) solummodo in iis locis, ubi deest copia Sacer- 
dotis, facilius ex nota mente Ecclesiae solveretur 
difficultas, sed frequenter etiam locum habet in iis, 
ubi adest Parochus : Hie itaque est casus, qui eum 
urget et vexat : Sed casus ad quern non extenduntur 
praefatae declarationes. 

Verum et quoad hujusmodi catholicorum matri- 
monia hactenus contracta, providere volens summus 
Pontifex spirituali contrahentium saluti, una et Epis- 
copum et missionarios a solicitudine qua fortasse 
afficiuntur, exirnere, dummodo nullum aliud, praeter 
clandestinitatis, obstet impedimentum, ea in radice 
sananda esse decrevit atque apostolica auctoritate 
sanat, quin opus sit Conjuges ad novi Consensus 
praestationem admittere, tribuens propterea Episcopo 
facultates in casu opportunas et necessarias. Ad 
praecavenda autem jurgia, quae oriri hinc possent, ac 
ne alterutri, vel etiam utrique Conjugii dissolutionem,* 
curet Episcopus, ne iis conjugibus denuntietur initi 
matrimonii invaliditas antequam ad eorum notitiam 
pariter deducatur et sanatio. Exquirat itaque secreto 
prout fieri potest, accuratam horum matrimoniorum 
notulam et conjugum nomina, omniaque diligenter 
descripta cum adnotatione Pontificiae sanationis 
caute custodiantur, quemadmodum pro matrimoniis 
occultis, seu conscientiae praescribit Benedictus XIV. 
in sua constitutione : Satis vobis (die 27. Nov. 1741) 
* Supply " causet." 



460 



APPENDIX. 



Postulabat denique idem Episcopus edoceri se, et 
Missionaries, quomodo, posita hujusmodi matrimo 
niorum invaliditate, se gerere debeant " erga eos qui 
post civile matrimonium jam consummatum, adhnc 
vivente Consorte, novum cum alio conjugium coram 
Nobis (inquit) inire poscerent. En autem rationes, 
quae eum ancipitem tenent — Si id fiat (prosequitur) 
sine civili repudio, Sacerdos se gravis simaf poe7iae sub- 
jicit. Si requirat praevium repudium, dato quod obti- 
neri possit, morem ilium Antichristianum auctoritate 
sua f aut potius Ecclesiae sanctione consecrat. Verum 
aliunde quo jure potest huic se petitioni negare, si rev era 
prius matrimonium nullum sit. Tunc enim ambae 
partes vere solutae sunt, et, utpote catholicae jus habent 
ad sacramenti receptionem* 

Ad hoc breviter respondetur. Si de matrimomis 
catholicorum hactenus contractis fit sermo, jam prae- 
visum per eorum sanationem, nec conjuges amplius 
resilire possunt, nec proinde ad novas cum aliis nup- 
tias transire. Si vero sermo est de contrahendis : 
Confidit equidem Sanctitas sua futurum, ut in poste- 
rum Fideles ab Episcopo, et missionariis edocti, juxta 
ea quae tradit Benedictus XIV. in suis litteris " Red- 
ditae sunt nobis " P. Paulum Simonem a S. Joseph 
datis 27. Septembris 1746 nullum scilicet a se con- 
trahi matrimonium per eum, quern coram magistratu 
civilem actum emittunt, ideoque conjugalem quam 
interim inter se haberent consuetudinem gravi culpa 
non carituram, ea qua debent docilitate obtempera- 

* Compare Chap. XXI. § 63, where we show in what cases 
Catholics in the United States may apply for divorce, both ab- 
solute and partial. 



APPENDIX. 



461 



turi sint Ecclesiae legibus ac Pastorum exhortationi- 
bus. Verum si tamen casus contingeret conjugalis 
consuetudinis post memoratum actum ante matri- 
monii coram Sacerdote celebrationem, sciat Epis- 
copus non in sola ejus Dioecesi id evenire, sed ubi- 
cumque viget lex contractus civilis ; quia nullibi 
desunt, qui vel ignorantia, vel pravitate ea lege abu- 
tantur. In eodem ergo discrimine ac ipse versare 
possunt et aliarum regionum Pastores. 

Primo itaque curent Episcopus et Missionarii 
utramque partem inducere ad catholice inter se con- 
trahendum. Si vero utraque pars in hoc convenit, 
ut suam quaeque sibi vindicet libertatem, vel etiam, 
si una tan turn id exposcerat, renuente altera, indi- 
cenda est eis separatio, et neutra admitti debet ad 
sacramenta, nisi separatione peracta, ut praescribitur 
de publicis concubinariis. Poscenti autem novum 
cum alio inire matrimonium suggerere, quod et sibi 
prius consulat, et ipsi Parocho, agendo scilicet ut et 
sibi civilis reddatur libertas, et Parocho nihil sit inde 
mali obventurum, non id esset civilis repudii morem 
approbare, dummodo rite instruatur postulans, id non 
ideo fieri, ut solvatur matrimoniale vinculum, quia 
nullo jam vinculo detinetur, sed tantum ut se ac 
Parochum a legalibus poenis, civilibusque vexationi- 
bus redimet. Eodem sensu, ac modo, quo toleratur 
primus actus civilis, expressio nempe consensus 
coram civili magistratu, tolerari potest et secundus, 
ut nimirum se partes eximant ab effectibus primi. 
Hisce vero penes Gubernium peragendis non se im- 
miscere debent Missionarii. Qui nubere exposcit, 
ipse negotium suum agat. 



462 



APPENDIX. 



Caeterum quod idem Benedictus XIV. in laudatis 
litteris docendos monet Fideles, sibi opportune aptent 
et Pastores, scilicet " Si regioitis consuetudini, et terreni 
Principis sanctionibus obtemperare coguntur, faciant 
quidetn, sed Religione sa/va, potiusque ducant sanctissi- 
mas Ecclesiae leges, quibus matrimonia contringuntur" 



APPENDIX. 



463 



VIII. 

FACULTATES, QUiE EPISCOPIS NOSTRIS CONCEDI 
SOLENT. 

£acultates — Form, L 

1. u Conferendi ordines extra tempora et non 
servatis interstitiis usque ad presbyteratum incl., si 
sacerdotum necessitas ibi fuerit." 

2. " Dispensandi in quibuscumque irregularitati- 
bus, exceptis illis, quae vel ex bigamia vera, vel ex 
homicidio voluntario proveniunt ; et in his etiara 
duobus casibus, si praecisa necessitas operariorum ibi 
fuerit, si tamen, quoad homicidium voluntarium, ex 
hujusmodi dispensatione scandalum non oriatur. ,, 

3. "Dispensandi super defectu aetatis unius anni* 
ob operariorum penuriam, ut promoveri possint ad 
sacerdotium, si alias idonei fuerint." 

4. " Dispensandi et commutandi vota simplicia in 
alia pia opera, et dispensandi ex rationabili causa in 
votis simplicibus castitatis et religionis." t 

5. " Absolvendi et dispensandi in quacumque si- 
monia ; et in reali, dimissis beneficiis, et super fruc- 
tibus male perceptis injuncta aliqua eleemosyna vel 
poenitentia salutari arbitrio dispensantis, vel etiam 
retentis beneficiis, si fuerint parochialia et non sint 
qui parochiis praefici possint." 

6. " Dispensandi in 3 et 4 consanguinitatis et 
affinitatis gradu simplici et mixto tantum, et in 2 , 3 
et 4 mixtis, non tamen in 2 solo quoad futura ma- 

* V. Fac. 3. inter Extr. C. f Intranda. 



464 



APPENDIX. 



trimonia ; quod vero ad praeterita etiam in 2 solo, 
dummodo riullo modo attingat primum gradum, cum 
his qui ab haeresi vel infidelitate convertuntur ad 
Fidem Catholicam, et in praefatis casibus prolem sus- 
ceptam declarandi legitimam." 

7. " Dispensandi supet impedimento publicae hon- 
estatis justis ex sponsalibus proveniente. 

8. " Dispensandi super impedimento criminis, 
neutro tamen conjugum machinante et restituendi jus 
amissum petendi debitum." 

9. " Dispensandi in impedimento cognationis spi- 
ritualis praeterquam inter levantem et levatum." 

10. " Has vero dispensationes matrimoniales 
videlicet 6 a , 7% 8 a et 9 a non concedantur, nisi cum 
clausula : du??imodo mulier rapta non fuerit, vel si rapta 
fuerit, in pates fate raptoris ?ion existat: et in dispensa- 
tione tenor hujusmodi facultatum inseratur, cum ex 
pressione temporis ad quod fuerint concessae.' , 

11. "Dispensandi cum gentilibus et infidelibus 
plures uxores babentibus, tit post conversionem et 
baptismum, quam ex illis maluerint, si etiam ipsa 
fidelis fiat, retinere possint, nisi prima voluerit con- 
verti.' > 

12. " Conficiendi Olea Sacra cum sacerdotibus, 
quos potuerint habere, et, si necessitas urgeat, etiam 
extra diem Ccenae Domini." 

13. " Delegandi simplicibus sacerdotibus protes- 
tatem benedicendi paramenta et alia utensilia ad Sa- 
crificium Missae necessaria, ubi non intervenit sacra 
unctio ; et reconciliandi ecclesias pollutas aqua ab 
Episcopo benedicta. et, in casu necessitas, etiam aqua 
non benedicta ab Episcopo. " 



APPENDIX. 465 

14. " Largiendi ter in anno indulgentiam plena- 
riam contritis, confessis ac sacra communione re- 
fectis." 

15. ." Absolvendi ab hseresi et apostasia a fide et 
a schismate quoscumque etiam ecclesiasticos tarn 
saeculares quam regulares ; non tamen eos qui ex locis 
fuerint ubi Sanctum Officium exercetur, nisi in locis 
missionum, in quibus impune grassantur haereses, 
deliquerint, nec illos qui judicialiter abjuraverint* 
nisi isti nati sint ubi impune grassantur haereses, et 
post judicialem abjurationem illuc reversi in haeresim 
fuerint relapsi, et bos in foro conscientiae tantum." 

16. "Absolvendi ab omnibus censuris in Consti- 
tutione ' Afiostolicce Seats moderationij dd. 12 Oct. 
1869 Romano Pontifici etiam speciali modo reserva- 
tis, excepta absolutione complicis in peccato turpi." f 

* De hujus vocis significatione V. p. LXI. nota 2. 
\ Hasc facultas comprehendit omnes omnino censuras 
Constitutionis " Apostolicce Sedis" excepta facultate absolvendi. 

a) Complicem in peccato turpi. 

b) Sacerdotem qui complicem absolvere prsesumpserit (Deer. 
S. C. Inq. 17 Junii 1866), quam tamen facultatem (sc. absolvendi 
a censuris et pcenis in C. Ben. XIV. : " Sacramentum Pceniten- 
tice" et dispensandi super irregularitate a violatione dictarum 
censurarum contracta) S. Sedes concessit " singulis Archiepisco- 
pis, Episcopis ac Vicariis Apostolicis " Fcederatorum Statuum, 
sed i° Ad quindecim casus tantum. 2° In propria Dicecesi vel 
Vicariatu exercendam, sive per se, sive per suum Vicarium Gene- 
ralem, sive per idoneos confessarios a se vel a dicto Vicario 3 
ad hoc speiialiter, et 4 cum expressa mentione Apostolicse Auc- 
toritatis deputandos, 5 favore eorum tantum sacerdotum, qui 
absque evidenti periculo provocandi fidelium scandalum cen- 
suras, quas complicem absolvendo incurrerunt, observare non 
valent, 6° " sub ea tamen lege, ut sic absoluti et dispensati infra 

30 



466 



APPENDIX. 



17. " Concedendi indulgentiam plenariam primo 
conversis ab haeresi atque etiam fidelibus quibuscum- 
que in articulo mortis saltern contritis, si confiteri non 
poterunt." 

18. " Concedendi indulgentiam plenariam in ora- 
tione 40 horarum ter in anno indicenda diebus epis- 
copo bene visis, contritis et confessis et sacra com- 
munione refectis, si tamen ex concursu populi et 
expositione SSmi. Sacramenti nulla probabilis sus- 
picio sit sacrilegii ab haereticis et infidelibus aut offen- 
sionis a magistratibus." 

19. "Lucrandi sibi easdem indulgentias." 

20. " Singulis feriis secundis non impeditis officio 
IX. lectionum, vel eis impeditis, die immediate se- 
quenti, celebrandi missam de requie, in quocumque 

duos menses, vel aliud congruum tempus a dispensante decer- 
nendum, directe, vel per medium proprii confessarii, suppressis 
nominibus. ad S. C. de Prop. Fide recurrere, eique explicare, 
quot personas complices in re turpi, et quoties a peccato com- 
plicitatis absolverint, et mandatis ejusdem S. Cong, desuper 
ferendis obedire teneantur, sub reincidentia in easdem censuras 
et pcenas, si contra venerint ; 7 injuncta singulis pro modo cul- 
parum congrua poenitentia salutari, quodque ab audiendis per- 
sonae complicis confessionibus omnino abstineant, aliisque in- 
junctis de jure injungendis." (Vide Cone. PI. Bait II. p. CXLVI. 
I. Deer.) 

c) Ab hseresi, ab apostasia in fide et a schismate in casibus, 
de quibus supra fac. 15. 

d) Personam cujuscumque sexus falso denunciantis sacer- 
dotem aliquem de sollicitatione in Confessione. Deer. S. C. 
Inq. 17 Junii 1866. 

Quibus sub conditionibus Episcopi nostri a simonia absol- 
vere valeant, V. supra fac. 5. 



APPENDIX, 



467 



altari, etiam portatili, et liberandi animas secundum 
eorum intentionem a purgatorii poems per modum 
suffragii." 

21. "Tenendi et legendi, non tamen aliis conce- 
dendi, praeterquam ad tempus tamen iis sacerdotibus, 
quos prsecipue idoneos atque honestos esse sciat, 
libros prohibitos, exceptis operibus Dupuy, Volney, 
M. Reghellini, Pigault, le Brun, De Potter, Bontham, 
J. A. Dulaure, Fetes et courtisanes de la Grece, No- 
velle di Casti, et aliis operibus de obsccenis et contra 
Religionem ex professo tractantibus." # 

22. " Praeficiendi parochiis regulares, eisque suos 
deputandi vicarios in defectu saecularium, de con- 
censu tamen suorum superiorum." 

23. "Celebrandi bis in die, si necessitas urgeat, 
ita tamen ut in prima Missa non sumpserit ablu- 
tionem, — per unam horam ante auroram et aliam 
post meridiem, — sine ministro, — et sub dio et sub 
terra, in loco tamen decenti, — etiamsi altare sit frac- 
tum vel sine reliquiis sanctorum, — et praesentibus 
haereticis, schismaticis, infidelibus et excommunicatis, 
— si aliter celebrari non possit. Caveat vero, ne prae- 
dicta facultate seu dispensatione celebrandi bis in die 
aliter quam ex gravissimis causis et rarissime utatur, 
in quo graviter ipsius conscientia oneratur. Quod si 
hanc eandem facultatem alteri sacerdoti juxta potes- 
tatem inferius apponendam communicare, aut causas 
utendi alicui, qui a Sancta Sede hanc facultatem 
obtinuerit, approbare visum merit, serio ipsius con- 
scientiae injungitur, ut paucis dumtaxat, iisque matu- 

- * V. Facult. 2. inter Extraord. C. 



468 



APPENDIX. 



rioris prudentiae ac zeli et qui absolute necessarii 
sunt, nec pro quolibet loco, sed ubi gravis necessitas 
tulerit, et ad breve tempus eamdem communicet aut 
respective causas approbet." 

24. " Deferendi SSmum Sacramentum occulte ad 
infirmos sine lumine, illudque sine eodem retinendi 
pro eisdem infirmis, in loco tamen decenti, si ab 
haereticis aut infidelibus sit periculum sacrilegii." 

25. " Induendi se vestibus saecularibus, si aliter 
vel transire ad loca eorum curae commissa vel in eis 
permanere non poterunt." 

26. " Recitandi rosarium vel alias preces, si bre- 
viarium secum deferre non poterunt, vel divinum offi- 
cium ob aliquod legitimum impedimentum recitare 
non valeant." 

27. " Dispensandi, quando expedire videbitur, 
super esu carnium, ovorum et lacticiniorum tempore 
jejuniorum et Quadragesimae." 

28. "Praedictas facultates communicandi, non 
tamen illas, quae requirunt Ordinem Episcopalem, vel 
non sine Sacrorum Oleorum usu exercentur, sacerdo- 
tibus idoneis qui in eorum dicecesibus laborabunt, et 
praesertim tempore sui obitus, ut, sede vacante, sit 
qui possit supplere, donee Sedes Apostolica cerlior 
facta, quod quam primum fieri debebit, per delegatos 
vel per unum ex iis alio modo provideat, quibus dele- 
gates auctoritate Apostolica facultas conceditur, sede 
vacante et in casu necessitatis, consecrandi calices/ 
patenas et altaria portatilia Sacris Oleis, ab Episcopo 
tamen benedictis." 

29. " Et praedictae facultates gratis et sine ulla 
mercede exerceantur et ad decennium tantum con- 



APPENDIX. 



469 



cessae intelligantur, nec illis uti possit extra fines suae 
dicecesis." * 

Facilitates Extraordinarice C. 

1. " Recitandi privatim, legitima concurrents 
causa, matutinum cum laudibus diei sequentis statim 
elapsis duabus horis post meridiem eamdemque facul- 
tatem ecclesiasticis viris sive saecularibus, sive regu- 
laribus communicandi." 

2. " Retinendi ac legendi libros ab Apostolica 
Sede prohibitos, etiam contra Religionem ex professo 
agentes, ad effectum eos impugnandi ; quos tamen 
diligenter custodiat ne ad aliorum manus perveniant, 
exceptis astrologicis, judiciariis, superstitiosis ac ob- 
sccenis ex professo ; eamdemque facultatem etiam 
aliis concedendi, parce tamen et dummodo prudenter 
praesumere possit nullum eos ex hujusmodi lectione 
detrimentum esse passuros." 

3. " Dispensandi cum Diaconis utriusque cleri 
super defectu setatis quatuordecim mensium, ut promo- 
veri possint ad Sacerdotium, si alias idonei fuerint." 

4. " Permittendi parochis sibi subjectis, dummodo 
justa et legitima causa concurrat, ut iis diebus festis, 
quibus Fideles Apostolica auctoritate soluti sunt ab 
obligatione Missam audiendi, ipsi ab applicatione pro 
populo abstinere valeant, dummodo pro eodem populo 
in ejusmodi Missa specialiter orent." 

5. " Permittendi Catholicis sibi subjectis, ut feriis 
sextis, sabbatis aliisque diebus, quibus carnium esus 

* I. e. non nisi favore subditorum suorum in dioecesi exis- 
tentium, non quidem quando execuiioni traditur, sed quando 
conceditur gratia. Acta. Vol. II. p. 670. 



47° 



APPENDIX. 



vetatur, acatholicis, si in eorum mensa esse conti- 
gerit. carries praebere valeant, dummodo tamen absit 
ecclesiasticae legis contemptus et ejusmodi facultate 
sobrie multaque circumspectione utantur, ne scan- 
daium in Caiholicos vel heterodoxos ingeratur." 

6. " Deputandi aliquem sacerdotem in locis sibi 
subjectis cum facultate consecrandi juxta form am in 
Pontincali Romano praescriptam calices, patenas et 
altarium lapides, adhibitis tamen Sacris Oleis ab 
Episcopo Catholico benedictis." 

7. " Impertiendi quater-in anno intra fines suae 
dicecesis in solemnioribus festis Benedictionem Papa- 
lem, juxta formulam typis impressam atque insertam, 
cum indulgentia plenaria ab iis lucranda, qui vere 
pcenitentes, confessi ac Sacra Communione refecti 
eidem Benediction] interfuerint, Deumque pro Sanctae 
Fidei propagatione et S. R. E. exaltatione oraverint" 

8. "Declarandi privilegiatum in qualibet ecclesia 
suae dicecesis unum altare, dummodo aliud privilegia- 
tum non adsit, pro cunctis Missae Sacrificiis, quae in 
eodem altari celebrabuntur a quocunque presbytero 
saeculari vel cujusvis ordinis regulari." 

9. " Benedicendi coronas precatorias, cruces, 
sacra numismata iisque applicandi indulgentias juxta 
folium typis impressum atque insertum,* necnon eri- 
gendi Confraternitates B. M. V. de Monte Carmelo, 
SS mi Rosarii et Bonae Mortis cum applicatione om- 
nium indulgentiarum et privilegiorum, quae Summi 
Pontifices iisdem Confraternitatibus impertiti sunt ; 
addita insuper potestate has facultates communicandi 
presbyteris sacro ministerio fungentibus." 

* Vide Cone. PI. Bait. II. p. 340. XXX. 



APPENDIX. 



47* 



10. "Erigendi in locis suae dicecesis, in quibus 
non adsint PP. Franciscales, pium exercitium Viae 
Crucis cum applicatione omnium indulgentiarum et 
privilegiorum, quae Summi Pontifices ejusmodi exer- 
citium peragentibus impertiti sunt, addita insuper 
potestate hanc facultatem communicandi presbyteris 
sacro ministerio fungentibus." 

11. "Promovendi Clericos sibi subditos ad Sub- 
diaconatum aliosque Ordines Majores usque ad Pres- 
byteratum inclusive titulo missionis, praestito tamen 
ab eisdem Clericis juramento^ antequam Subdiaconi 
ordinentur, ,quo spondeant, ad instar Pontificiorum 
alumnorum, suae dicecesi vel missioni se esse perpetuo 
inservituros." 

12. " Delegandibenedictionem campanarum, quan- 

* Formula juramenti hsec est : " Ego N. films N. Dicecesis 
vel Vicariatus N. spondeo et juro, quod, postquam ad Sacros 
Ordines promotus fuero, nullam Religionem, Societatem aut 
Congregationem regularem sine speciali Sedis Apostolicaa licen- 
tia aut S. Congregaticnis de Prop. Fide ingrediar neque in earum 
aliqua professionem emittam." 

" Voveo pariter et juro, quod in hac Dioecesi aut Vicariatu, 
velf in Missione, cui S. Sedi vel S. Congregationi de P. F. me 
destinare placuerit, perpetuo in divinis administrandis laborem 
meum ac operam sub omnimoda directione et jurisdictione R. 
P. D. pro tempore Ordinarii pro salute animarum impendam, 
quod etiam praestabo, si cum praedictse Sedis Ap. licentia Reli- 
gionem, Societatem, aut Congregationem regularem ingressus 
fuero et in earum aliqua professionem emisero." 

" Item voveo et juro, me prsedictum juramentum et ejus obli- 
gationem intelligere et observaturum/' 

"Sic me Deus adjuvet et hsec Sancta Dei Evangelia." 

t Juxta hunc alterum modum jurare debent, qui nondum alicui Mis- 
sioni addicti fuerint. 



472 



APPENDIX. 



documque earn ipsi absque gravi incommodo perfi- 
cere nequeant, sacerdotibus sibi bene visis, servato 
ritu Pontificalis Romani, atque adhibitis Oleis et aqua 
ab Episcopo benedictis ; necnon sine aqua ab Epis- 
copo benedicta, si gravis causa concurrat." 

13. " Et praedictae facultates gratis et sine ulla 
mercede exerceantur, nec illis uti possit extra fines 
suae dicecesis." 

Facilitates Extraordi?iaricz D. 

1. " Dispensandi super impedimento cognationis 
spiritualis inter levantem et levatum." 

2. ''Dispensandi in casibus occultis et in foro 
conscientise tantum super primo et secundo gradu 
simplici et mixto affinitatis ex copula illicita prove- 
nientis, in linea sive collaterali sive etiam recta, dum- 
modo, si de linea recta agatur, nullum subsit dubium 
quod conjux possit esse proles ab altero contrahen- 
tium genita, tam in matrimoniis scienter vel ignoran- 
ter contractus, quam in contrahendis." 

3. " Dispensandi cum subditis, exceptis Italis de 
quibus non constat Italicum domicilium omnino dese- 
ruisse, atque excepto insuper casu matrimonii cum 
viro vel muliere judaeis, super impedimento disparita- 
tis cultus, quatenus sine contumelia Creatcris fieri 
possit, et dummodo cautum omnino sit conditionibus 
ab Ecclesia praescriptis ac praesertim de amovendo a 
Catholico conjuge perversionis periculo, deque con- 
versione conjugis infidelis pro viribus curand:, ac de 
universa prole utriusque sexi s in Catholicae Reli- 
gionis sanctitate omnino educanda: servata in reli- 
quis adjecta instructione typis impressa."* 

* Hanc V. Cone. PI. Bait. II. p. 311. XIV. 



APPENDIX. 



473 



4. " Dispensandi cum suis subditis, exceptis Italis 
de quibus non constat Italicum domicilium omnino 
deseruisse, super impedimento impediente mixtae 
Reiigionis, dummodo cautum omnino sit conditioni- 
bus ab Ecclesia praescriptis prout in superiori No. 3."* 

5. "Dispensandi in matrimoniis mixtis jam con- 
tracts, non item in contrahendis, super gradibus con- 
sanguinitatis et affinitatis, super quibus Apostolicam 
facultatem pro Catholicis jam obtinuit, quatenus pars 
Catholica, praevia absolutione ab incestus reatu et 
censuris, cum parte acatholica rite et legitime matri- 
monium contrahere de novo possit, prolesque sus- 
cepta ac suscipienda legitima declarari, dummodo 
cautum omnino sit conditionibus ab Fcclesia prae- 
scriptis prout in sup. No. 3." 

6. " Sanandi in radice matrimonia contracta, quan- 
do comperitur adfuisse impedimentum dirimens, super 
quo ex Apostolicae Sedis indulto dispensare ipse pos- 
sit, magnumque fore incommodum requirendi a parte 
innoxia renovationem consensus, monita tamen parte 
conscia impedimenti de eflectu hujus sanationis." 

7. " Absolvendi contrahentes in omnibus et sin- 
gulis casibus supra expositis, dummodo opus sit, ab 
incestus reatibus et censuris, imposita pro modo cul- 
parum congrua pcenitentia salutari, prolemque sus- 
ceptam ac suscipiendam legitimam declarandi." 

8. " Subdelegandi praesentes facultates suis Vica- 
riis Generalibus, quoties ultra diem a propria resi- 
dentia abesse debeat, atque duobus vel tribus pres- 
byteris sibi benevisis in locis remotioribus propriae 

* Et dummodo, si de contrahendis agatur, aliud non obstet 
impedimentum dirimens, ut patet ex facultate proxime sequenti. 



474 



APPENDIX. 



dicecesis, pro aliquo tamen numero casuum urgentio- 
rum, in quibus recursus ad ipsum haberi non possit." 

''Voluit autem Sanctitas Sua et omnino praecepit 
ut praedictus Episcopus superioribus facultatibus jus- 
tis dumtaxat gravibusque accedentibus causis et gratis 
utatur, injuncta tamen aliqua congrua eleemosyna, in 
pium opus arbitrio ipsius Episcopi eroganda, atque 
ut, elapso decennio, de singulis dispensationibus con- 
cessis certiorare debeat Apostolicani Sedem." 

Facilitates Extraordi?iarice E. 

" Dispensandi in utroque foro cum Catholicis, ejus 
jurisdictioni subjectis, in matrimoniis sive contractis 
sive contrahendis, super sequentibus impedimentis " : 

1. " Super impedimento primi gradus affinitatis in 
linea collaterali ex copula iicita provenientis pro " 
(v. c. decern) u casibus." # 

2. " Super impedimento secundi gradus consan- 
guinitatis vel affinitatis admixti cum primo in linea 
transversali pro " (v. c. sexaginta) "casibus." 

3. " Super impedimento secundi gradus consan- 
guinitatis vel affinitatis in linea transversali sequali 
pro" (v. c. centum) u casibus." 

4. " Super impedimento publico primi gradus affi- 
nitatis. ex copula illicita provenientis, in linea sive 
collaterali sive etiam recta pro " (v. c. triginta) " casi- 

* Xumerus casuum, qui singulis Episcopis conceditur, varius 
est non tantum pro variis dicecesibus, sed etiam pro vario tem- 
pore concessionis in eadem dicecesi eidemque Epi^copo ; ideo 
enim Episcopi S. Sedem, elapso decennio, ad quod facultates 
conceduntur, de singulis hujusmodi dispensationibus certiorare 
debent, ut pateat quibus facultatibus pro sua speciatim dicecesi, 
et quo numero quisque indigeat. 



APPENDIX. 



47$ 



bus, dummodo si de linea recta agatur, nullum subsit 
dubium quod conjux sit proles ab altero contrahen- 
tium genita." 

" Insuper Sanctitas Sua praedicto Episcopo facul- 
tatem concessit in omnibus et singulis casibus supe- 
rius expositis absolvendi contrahentes, dummodo opus 
sit, ab incestus reatibus et censuris, imposita pro 
modo culparum congrua pcenitentia salutari ac pro- 
lem tarn susceptam quam suscipiendam legitimam 
declarandi." 

"Voluit autem eadem Sanctitas Sua ac omnino 
praecepit, ut praedictus Episcopus iisdem facultatibus 
urgentissimis dumtaxat concurrentibus causis et gra- 
tis utatur, injuncta tamen aliqua eleemosyna in pium 
opus arbitrio ipsius Episcopi eroganda." 

" Tandem SS mus Pater eidem Episcopo potesta- 
tem fecit praedictas facultates subdelegandi suis Vica- 
riis Generalibus, quoties ultra diem a propria resi- 
dentia abesse debeat, atque duobus vel tribus presby- 
teris sibi bene visis in locis remotioribus propriae 
dicecesis, pro aliquo tamen numero casuum urgentio- 
rum, in qui bus recursus ad ipsum haberi non possit. ,, 
(Ap. A. Koning's Theol. Mor. vol. i. p. lxx.) 



4/6 



APPENDIX. 



IX. 

§ I. ECCLESIASTICAL TRIALS IN THE UNITED STATES: 
PRIESTS SHOULD ALWAYS BE ASSOCIATED WITH 
BISHOPS IN CONDUCTING CAUSES I OATH ADMINIS- 
TERED TO THEM. 

(Note to Chapter XXVIII. § 87.) 

i. The decree of the Council of St. Louis, which 
ordains that all causes of ecclesiastics shall be adjudi- 
cated upon by the ordinary and two priests selected 
' by him, is evidently framed on the model of the fol- 
lowing decree of the Council of Trent : 

" The Holy Synod ordains that the decree, made 
under Paul III., of happy memory, beginning ' Capi- 
tula Cathedralium,' shall be observed in all cathedral 
and collegiate churches, not only when the bishop 
makes his visitation, but also as often as he proceeds 
ex officio, or at the petition of another, against any 
one. . . . Yet so, however, that ... all the partic- 
ulars subjoined shall have place : to wit, that the 
chapter shall, at the beginning of each year, select 
two individuals belonging to the chapter, with whose 
counsel and consent the bishop, or his vicar, shall be 
bound to proceed, both in instituting the process 
and in all other acts thereof, until the end of the 
cause inclusively — in the presence, nevertheless, of 
the notary of the said bishop, and in the bishop's 
house, or his ordinary court of justice. 

" The two deputies shall, however, have but one 
vote ; but either of them may give his vote in unison 
with that of the bishop. 



APPENDIX. 



477 



" But if, as regards any proceeding, or as regards 
any interlocutory or definitive sentence, they shall 
both differ from the bishop, they shall in this case 
choose, in conjunction with the bishop, a third person, 
within the term of six days; and should they also 
not agree in the selection of that third person, the 
choice shall devolve on the nearest bishop ; and the 
point whereon they differed shall be decided in ac- 
cordance with the opinion which that third person 
sides with ; otherwise, the proceedings, and what 
follows thereupon, shall be null, and of no effect in 
law." (Cone. Trid. sess. xxv. ch. vi. on Ref.) 

2. This decree enacts : 

(a) That two priests, selected by the chapter, 
shall assist the bishop in the trying of certain ecclesi- 
astical causes. 

(b) That they shall have but one vote. 

(c) That in case they both differ from the bishop, 
a third person shall be selected, by mutual consent, 
in order to terminate the cause. 

3. The decree of St. Louis, as will be seen, bears 
a striking resemblance to the above decree, as was 
already remarked by Kenrick. (Mor. vol. ii. p. 345.) 

From all this it is evident that in the United 
States, bishops are not at liberty to try causes singly ; 
but that they are bound to proceed with the advice 
and consent of two of their councillors, whose vote 
they cannot set at nought. 

4. It has been asked, whether those two priests, 
whom the bishop associates with himself on ecclesi- 
astical trials, are obliged to act under oath ? 

We reply, that canon law nowhere appears ex- 



478 



APPENDIX. 



plicitly to require this oath. Yet as the above priests 
would seem to constitute an ecclesiastical jury, the 
analogy from the civil law may warrant this oath, 
whenever the bishop thinks it proper to administer 
the oath to them. But essential it is not. 

5. That priests have always been associated with 
bishops in conducting ecclesiastical trials is unani- 
mously asserted by canonists. 

Soglia holds, that the bishop is bound to hear the 
advice of his chapter in punishing ecclesiastics, and 
in inflicting censures upon them. (Jus Eccl. vol. 2. 
lib. i. cap. iii.) Devoti tells us that in former 
tim:s the archdeacon's tribunal had entire charge 
of all causes of the bishop's forum. (Inst. Can. torn. i. 
§ viii. p. 166.) 

6. Another celebrated canonist informs us, that 
in the earliest ages, as at present, all ordinary causes 
of ecclesiastics were decided upon by the bishop with 
the advice of his priests. (Walter, Jus Can. § 180.) 

7. Benedict XIV. writes, that in conformity with 
the Council of Trent (sess. xxv. ch. x. on Ref.), 
judges of causes — judices causarum or judices syn- 
odales — shall be appointed in the synod (from among 
the clergy), to whom ecclesiastical and spiritual causes, 
belonging to the ecclesiastical court, shall be com- 
mitted. 

§2. CIVIL JURIES: ANALOGY BETWEEN CIVIL AND 
CANON LAW. 

8. The two clerical members of the ecclesiastical 
court seem to correspond either to associate judges 
of civil courts, or also to civil juries. 



APPENDIX. 



479 



In civil courts, trial by jury is prevalent through- 
out most countries. Juries are made up of men 
qualified by law to take cognizance of the facts in 
the suit, and give a fair and impartial opinion on 
them. The jurors, therefore, are judges of facts in 
the case. 

9. These juries are thus described : 

" The court awards a decree of venire facias upon 
the roll, or record, commanding the sheriff that he 
cause to come here, on such a day, twelve free and 
lawful men, liberos et legates homines, of the body 
of his county, by whom the truth of the matter may 
be better known ; and who are neither of kin to 
the aforesaid A., nor the aforesaid B., to recognize 
the truth of the issue between the said parties.'' 
(Blackst. Comment, bk. iii. ch. xxiii.) 

10. Of the oath which is administered to jurors, 
this author thus writes : 

" When the sufficient number of persons impan- 
elled (from a little pane or oblong piece of parch- 
ment, on which their names were written), or tales- 
men appear, they are then separately sworn well 
and truly to try the issue between the parties; and 
a true verdict to give according to the evidence. 
Hence they are denominated the jury, jurata, and 
jurors, sc. juratores." (Blackst. Comment, bk. iii. 
ch. xxiii.) 

Again they are called "judges of facts." (Ib.) 

11. These requisites are, in part at least, applica- 
ble to the two councillors, selected by the bishop 
to examine into and determine upon facts in ecclesi- 
astical causes. 



4So 



APPENDIX. 



§ 3. TESTIMONY GIVEN ON OATH IN ECCLESIASTICAL 
NO LESS THAN IN CIVIL CAUSES. 

12. This oath — juramentum calumniae — is that 
which is administered both to the plaintiff and to the 
defendant, as also to their procurators. 

13. By it they promise to say but the truth, to do 
nothing in order to effect a corrupt judgment or 
unjust sentence, and not to advance any false or un- 
necessary proofs. 

14. The oath is administered in all causes, spir- 
itual no less than secular, in the first as well as in 
the second instance, or stage of proceedings. 

15. If not demanded by the contestants, it may 
be omitted • when, however, demanded by the parties 
in the suit, the evidence must invariably be given on 
oath ; otherwise the entire process is rendered null 
and void. 

Some jurists hold that, in civil courts, this oath is 
always requisite \ others maintain that it is essential 
only when insisted upon, as above stated. 

16. In ecclesiastical courts it may be neglected, 
and is, in fact, not unfrequentiy set aside. 

But when called for by either of the contending 
parties, it would appear to be indispensable also in 
ecclesiastical tribunals. (Apud Devoti, Instit. Can. 
torn. ii. lib. iii. tit. viii.) 



THE END. 



AN IMPORTANT SCHOOL BOOK 
LESSONS IN BIBLE HISTORY, 



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2 P. o'SHXA, PUBLISEXB. 

ist. The clearness and completeness of the narrative. 

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In view of the many text-books of Sacred History already in 
use, the compilers of the present work deem it necessary to say 
a few words of the motives which have induced them to offer it 
to the public. Engaged for many years in the work of educa- 
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P. O'SHEA, PUBLISHER. 3 

The object of the present work has been, to give in a clear and 
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omitting nothing which might edify and instruct, and retaining, 
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in the books of Judith. Esther, etc., cannot be exactly deter- 
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omit the dates, rather than give those generally assumed. 

The description of the Temple is taken from Calmet, but the 
compilers have omitted certain measurements upon which au- 
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In order to connect more clearly the Old and New Testaments, 
there is given a brief sketch of the history of the Jews during 



1 P. (VSHEA, PUBIilSHEK. 

that period which intervened between the triumphs of the 
Macchabees and the coiniog of Our Lord. 

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